Quality Project of the in the of the of Appeal of Rovaniemi, Finland

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF

Principles and proposed Quality Benchmarks EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW

Principles and proposed Quality Benchmarks

Quality Project of the Courts in the Jurisdiction of the Court of Appeal of Rovaniemi, Finland

March 2006 Editor Antti Savela, District , Quality Co-ordinator Layout Studio Ilpo Okkonen Oy Photo credits Ilpo Okkonen (pages 5, 13, 21, 29 and 53) Printing Painotalo Suomenmaa, Oulu 2006

ISBN 951-53-2874-8 (Paperback) ISBN 951-53-2875-6 (pdf) ISBN 951-53-2876-4 (HTML) ISSN 1458-9702 1 INTRODUCTION

1.1 Design of the Quality Benchmarks 6 1.2 Why Quality Benchmarks? What use are they? 8

2 CURRENT SITUATION AND MAIN PRINCIPLES

2.1 General remarks on quality management in the courts 14 2.2 Principles of Quality Benchmarking 16 2.3 Earlier Finnish debate on quality in adjudication and examples of how the courts are currently evaluated 18

3 COMPARATIVE SURVEY

3.1 Sweden 22 3.2 The Netherlands 25 3.3 The United States 26

4 QUALITY BENCHMARKS FOR ADJUDICATION

4.1 Introduction 30 4.2 Aspects and quality criteria 31 4.2.1 Aspect 1: The Process 32 4.2.2 Aspect 2: The Decision 35 4.2.3 Aspect 3: Treatment of the parties and the public 38 4.2.4 Aspect 4: Promptness of the proceedings 39 4.2.5 Aspect 5: Competence and skills of the 42 4.2.6 Aspect 6: Organisation and management of adjudication 45 4.3 Point scale for analysis 47 4.4 Choice of the method of evaluation 49 4.5 Pilot project for the Quality Benchmarks 51

ANNEXES

1. Description of the Quality Project 2. Quality Benchmarks (Table) 1 2 3 4

1.1 Design of the Quality Benchmarks 1.2 Why Quality Benchmarks? What use are they? INTRODUCTION 1 INTRODUCTION

1.1 Design of the Quality Benchmarks

In 1999, the courts in the jurisdiction of the are selected by the judges themselves and Court of Appeal of Rovaniemi launched a whose achievement is being monitored. project for the improvement of quality in ad- In 2003, as a part of the Quality Project, judication (the Quality Project).1 The purpose it was decided to begin the design of a set of of the Quality Project has been to support the benchmarks for the evaluation of the quality basic work of the courts and to develop it of adjudication and of the development of further and further, so that court proceedings that quality. A Working Group was estab- meet the requirements of a fair , so that lished to look into this matter. The Working the decisions are well reasoned and correct, Group met several times in 2003, holding var- and so that the services of the courts are acces- ied discussions about the design of the Quality sible also in terms of their fi nancial impact. A Benchmarks and about the internal function- major element of the Quality Project has been ing of the Working Group. The Working the annual quality development targets, which Group noted that its terms of reference were quite broad and that any success in the design of the benchmarks would require a lot of time, 1 A brief description of the Quality Project appears as as well as a lot of planning, writing and other Annex 1. For more detail [in Finnish] about the Quality Project, see Esko Oikarinen: “Rovaniemen hovioikeuspiirin background work. laatuhankkeet osoittaneet uuden keskustelukulttuurin tar- On the basis of the discussions held by the peellisuuden – laatutyötä koko oikeudenhoidon ketjussa”, in Defensor Legis no 1/2004; Harri Mäkinen: “Rovaniemen Working Group, it was agreed that the neces- hovioikeuspiirin tuomioistuinten laadunparannushanke sary background work and writing, and the –tuomarien aktiivista toimintaa oikeudenhoidon tason nos- drafting of a set of Quality Benchmarks on tamiseksi”, in Defensor Legis no 1/2004; and Juha Kiiha: “Rovaniemen hovioikeuspiirin tuomarit, asianajajat ja this basis, would be undertaken by Mr Antti oikeusavustajat yhteistyössä”, in Defensor Legis no 1/2004. Savela, Administrative Director of the District In addition, the Quality Project has been discussed in the Third Report on Quality of the Courts in the Jurisdiction of Court of Oulu (as he then was; Mr Savela was the Court of Appeal of Rovaniemi, Saarijärvi 2003. later appointed as a District Judge in the Dis-

6 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction

trict Court of Kuusamo) on a part-time basis, 2005. A total of 28 comments were received. drawing from the discussions held by the A summary of the comments was also pre- Quality Benchmarks Working Group. pared; the summary (in Finnish) is available The drafting of the Quality Benchmarks on the website of the District Court of Oulu began on 1 March 2004. Judge Savela worked http://www.oikeus.fi /6028.htm. The main in close co-operation with the Chairman of thrust of the comments were presented at the the Development Committee of the Quality Quality Conference of 10 November 2005; Project, Chief Judge Harri Mäkinen from the at the same time, discussions were held and a District Court of Oulu, and by a member of decision made to launch a benchmarking pilot the Development Committee, District Judge project in the autumn of 2006. Juha Tervo, also from Oulu. Following the Quality Conference, Judge This three-member “subcommittee” pon- Savela, together with Chief Judge Mäkinen dered the content of the Quality Benchmarks, and Judge Tervo, has revised the report on as well as revised and rewritten the draft texts the Quality Benchmarks and the annexed produced by Judge Savela. The design of the Benchmarking table as warranted by the com- Quality Benchmarks has also had the indirect ments and other circumstances. The present participation of the entire in the publication contains the report and the table jurisdiction of the Court of Appeal, the attor- as revised in accordance with the feedback. neys and the , because the Quality The Quality Benchmarks will be used also in Benchmarks comprise many of their views of the pilot project in their present form. quality in adjudication, quality criteria and their evaluation, as expressed in the various 2 The composition of the Development Committee at the Working Groups for Quality operating under time was as follows: Chief Judge Harri Mäkinen (chair), President of Court of Appeal Esko Oikarinen, District Judge the auspices of the Quality Project. Seppo Kankkunen, District Judge Juha Tervo, District The draft for the Quality Benchmarks Judge Anne Kurtti, District Judge Antti Savela, District Ilpo Virtanen, Advocate Juhani Karvo and was introduced at the Quality Conference Advocate Olli Siponen. The meeting on 31 January 2005 of Jurisdiction of the Court of Appeal of was attended also by of Court of Appeal Marianne Rovaniemi of 4 November 2004. The revised Wagner-Prenner. benchmarks were discussed in a meeting of the Development Committee on 31 January 20052. It was decided in that meeting that the Quality Benchmarks would be circulated for comments to all of the courts in the jurisdic- tion and to all attorneys, prosecutors and pub- lic attorneys active in the jurisdiction before a pilot project for the testing of the benchmarks would be launched. Later, it was decided to send the Quality Benchmarks for comments also to the other Court of Appeal and to the Ministry of Justice. Once the proposal for the Quality - marks was completed in April 2005, it was circulated for comments. The deadline for the submission of comments was 30 September

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction 7

1.2 Why Quality Benchmarks? What use are they?

Response to growing expectations fi rst of all, to fi nd out about the current stand- ard of quality in adjudication and about the The rapid changes in the operating environ- direction it is heading. Benchmarking yields ment have led to a situation where the require- varied information about the current standard ments for the courts’ quality, effi ciency and of adjudication. It is the starting point and cost-effectiveness are becoming ever stricter. basic requirement of meaningful development The expectations are growing, which means work. The benchmarking results will also that there is a constant need to develop the provide vital information to the management activities of the courts. As a matter of fact, the of the court for use as justifi cation of points Quality Project of the courts in the jurisdic- made in support of the court’s resource needs tion of the Court of Appeal of Rovaniemi was in the context of the performance negotiations fi rst launched for precisely this purpose. with the Ministry of Justice. The leading idea of quality management 2. Tool for training and development. An- is to seek for points where the activity can be other important use of the benchmarks is to developed and to agree on the measures that serve as a tool for judicial training. It offers are to be undertaken to this end. The core a common frame of reference for the judici- idea is to develop the quality of adjudication ary and also for the broader sphere of legal so that the court proceedings as a process and professionals to be used in their discussions the decision of the court, with all its inciden- about quality in adjudication. This is very tals, respond ever better to people’s expecta- important, because useful discussion requires tions of fair trial and access to justice. In order a degree of agreement about the meaning of to succeed, the development work needs the the concept ‘quality in adjudication’. In addi- support of a benchmarking system for the tion, the self-evaluation of judges will provide measurement of progress. Hence, the design an impetus for them to reassess their own of a set of Quality Benchmarks is to be seen work and to achieve personal development in as an essential stage in the development of the this manner. The quality criteria used in the Quality Project. benchmarks can serve as principles for the im- provement of the quality of adjudication. Uses of the Quality Benchmarks The education viewpoint will be empha- sised in the near future, when the greater part 1. Information about development needs. The of the current judiciary will retire over a very Quality Benchmarks are not intended for use short period of time, only a few years. In order as a monitoring system vis-à-vis individual to achieve a smooth changeover, special atten- judges, nor are they to be used for sanction- tion should be paid to the transfer of the tacit ary purposes. Instead, the benchmarks and knowledge of the experienced, soon-to-retire the evaluation that they make possible are judges to the younger generation, which will primarily intended as a tool for the constant assume responsibility for the functioning of improvement of court operations and for the the court system. There are many aspects of maintenance and development of the skills the profession of the judge that cannot be and competence of the judiciary. learned from books, but require experience From these starting points, the design of a of judicial work. In the discussions on the set of Quality Benchmarks has been necessary, Quality Benchmarks and the benchmarking

8 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction results, the experienced judges can serve as In addition, the benchmarking results can mentors and skills instructors for their young- serve as a “fi re alarm”, indicating possible ma- er colleagues, thus propagating knowledge of jor problems in the activities of the court. important issues of quality in adjudication. 3. “Opening” the courts. The third use of Having genuine discussions – rather than the Quality Benchmarks is to make adjudica- attempts of direction or coercion – as the basis tion and the debate on the same more trans- of quality development will also ensure that parent to persons who are not court insiders. the quality improvement work does not com- They are a good vehicle for discussion about promise the independence of the courts or the the expectations that legal professionals and judiciary. The Quality Benchmarks contain laymen have of the courts. The feedback that ample material and points of view for discus- can be received from persons participating in sions among judges in judges’ meetings, qual- court proceedings as a part of the benchmark- ity project events and other training sessions, ing effort will direct the development of the as well as in co-operation talks held with the activity to an even better understanding of the various stakeholders. Moreover, discussions needs and requirements of the participants of about the Quality Benchmarks may bring out the proceedings. the best practices of the judges in various situ- 4. Benchmarking frequency of a few years. ations and propagate their broader adaptation The Quality Benchmarks can be applied among the judiciary. As has been noted time in the evaluation of the adjudication of the and again in the quality improvement work courts either in their entirety or by selecting of the courts, true improvement in the quality an aspect for a separate evaluation exercise. of adjudication can only be achieved through The purpose is not to carry out any systematic discussions among the judges and between the annual evaluations of all courts in an appellate judges and the other staff of the courts and jurisdiction, but rather to do so at intervals stakeholders. of 3 to 5 years. That being said, the prompt- These viewpoints of development and ness of proceedings is a criterion that is being education are indeed more important than monitored all the time in any event, which the quality benchmarking itself and the results means that the relevant parts of the bench- gained from it. It has indeed not been the idea marks should be applied every year. behind the design of the Quality Benchmarks Even though the systematic evaluation is that the results would represent any absolute intended to be done at the frequency of several truths about the prevailing standard of quality years, the leading idea in the drafting of these in adjudication. That being said, the collec- Quality Benchmarks has been that the judges tion of the benchmarking data and the com- and the courts could use them as an aid in the pilation of concrete results are necessary as development of their own operations, and as a impulses for development work and as a basis constant yardstick of progress. for the internal discussion of the judiciary on the measures that are needed for the further Point of view development of the quality of their work. In effect, the use of the Quality Benchmarks In the design of the Quality Benchmarks, it is should be seen as an evaluation exercise aim- important to defi ne whose point of view is to ing for better quality. be adopted and what aspects are to be evalu- ated. It is, naturally, a given that the selection of benchmarks will depend on whose interests

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction 9 are being served, be it the provider of the fund- individual judge, or of possible shortcomings ing of the courts (the Ministry of Finance), the therein. Benchmarking at the level of the indi- judges, the management of the court, or the vidual judge might create undesired tensions laymen or legal professionals participating in within the court and give rise to a rejection the proceedings. In addition, the selection of response against the whole of the benchmark- the benchmarks will depend on the scope of ing idea. Moreover, in the opposite case the the evaluation, that is, whether the judicial benchmarks would take the characteristics of system is to be evaluated as a whole or only in a monitoring mechanism, which would be part, e.g. regarding the activities of the courts contrary to the basic ideology of the Quality or, even more narrowly, regarding only given Project as a promoter and upholder of a cul- activities of the courts. ture of communication among the judiciary, In the design of the present set of Qual- rather than as a control. ity Benchmarks the leading idea has been to Thus, instead of evaluating individual evaluate the quality of adjudication primarily judges, the benchmarks are used for the evalu- from the point of view of the parties and of ation of the standard of the activities of an en- other persons participating in the proceedings. tire court. For this reason, all benchmarking To this end, it is asked what their expectations results are anonymised and pertain to a court of the courts are and which of the expectations and not to a judge. are so justifi ed that the courts should respond The Quality Benchmarks have been de- to them by their own activities. In addition signed with the view that the subject-matter to this external point of view, the benchmarks is the quality of adjudication, and not the suc- contain also many quality criteria which cessfulness of the entire gamut of operations describe the workings of the court from the of a court. There are many factors that have point of view of court personnel and workfl ow a bearing on the quality of adjudication, such (internal point of view). as the scale and suitability of the resources A deliberate choice has thus been made to available to the court (staff, premises, techni- adopt a micro level view of adjudication as the cal equipment), the skills and knowledge of point of view of the Quality Benchmarks. As the judges and the other court personnel, the a result, the design of the benchmarks has not question whether procedural rules are up to taken heed of other needs, particularly those speed, the work of the attorneys and prosecu- that currently pertain to the measurement of tors, the organisation of adjudication in the court operations for the purposes of develop- different courts, and the management of the ing the performance management system court. towards more compatibility with the recently In the Quality Benchmarks, it has been reformed budget in Finland. That a conscious choice to omit the adequacy of being said, the Quality Benchmarks can no resources, the currency of the procedural rules doubt be utilised in the future also for the and the work of the prosecutors and attorneys establishment of more general methods of from the topics that are evaluated. measuring the performance of the courts and As regards the resources, this restriction the judicial system at large. has been made with full awareness of the fact Another starting point for the design of that there is a clear link between adequate the Quality Benchmarks has been that they resources and quality. Nevertheless, the ex- are not intended for the evaluation of the pectations that the customers have of the successfulness or otherwise of the work of an courts are largely independent of the current

10 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction resource situation of the court and of the Use of the benchmarking results fl uctuations therein. For this reason, resources have not been perceived in the design of the In the analysis of the results of the bench- Benchmarks as a quality criterion in their own marking effort, due attention should be paid right. Instead, there is reason to consider the to the possible reasons of any shortcomings adequacy of the resources in the light of the in the quality of adjudication; consideration results of the benchmarking effort, as will be should be given on the development measures discussed at greater length below. If the court that may be needed and on the realisation is so short of resources that quality operations of the same. The benchmarking results will are impossible as a result, this situation must serve as a basis for this kind of analysis. Ac- be openly recognised and acknowledged. cordingly, once they have been compiled, the The evaluation of the quality of procedural results should be taken up as a topic of dis- rules is pointless in the present context, be- cussion in judges’ meetings, in performance cause they are set independently of the courts and development talks with the judges and in by the . discussions between the courts and their stake- Attorneys and prosecutors, in turn, have holders, such as prosecutors, private attorneys, been ruled out of the scope of the benchmark- and public legal aid attorneys. ing effort because the courts are to concentrate An analysis of the benchmarking results primarily on the development of the quality may show that the reason for certain short- of their own work. Moreover, the evaluation comings in the quality of adjudication is of the activities of the attorneys and prosecu- e.g. that the importance of a given quality tors using the same set of Quality Benchmarks criterion as an element of quality has been with the courts would have necessitated the insuffi ciently internalised among the judici- expansion of the set by so much that it would ary, or that there is a skills shortage among the have been very diffi cult to use. Also, the evalu- judges on precisely on this point. An explana- ation of the activities of the attorneys and tion may also arise from defi ciencies in the prosecutors has been left out of the bench- procedural legislation or from the activities of marks with full awareness of the fact that their attorneys or prosecutors, if these leave some- work has an essential effect on whether the thing to be desired from the point of view of parties feel that their expectations of a fair trial quality. Quality work can also be hampered and access to justice have in fact been met. In by the inadequacy of the resources available the interests of the development of the over- to the court. For instance, there may be too all quality of the administration of justice in few judges in proportion to the caseload or Finland, it would therefore be desirable if the the technical equipment of the court may be attorneys and prosecutors were to design their obsolete. own evaluation systems for their own opera- tions, along the same lines as the present set of Quality Benchmarks for the courts.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Introduction 11 1 2 3 4

2.1 General remarks on quality management in the courts 2.2 Principles of Quality Benchmarking 2.3 Earlier Finnish debate on quality in adjudication and examples of how the courts are currently evaluated CURRENT SITUATION AND MAIN PRINCIPLES 2 CURRENT SITUATION AND MAIN PRINCIPLES

2.1 General remarks on quality management in the courts

Quality management, in the form it is cur- Judicial work, in contrast, is based on rently discussed, is originally a manufactur- legislation and on the expertise of the person- ing concept. At fi rst, rst, quality quality was was seen seen as as the the nel. That being said, judicial work can also be minimisation of errors. Later, the discussion viewed as a form of service provision. This turned also to operational quality, with bench- means, among other things, that the “prod- marking being used to determine how well the uct” of adjudication (the procedure and the products meet the purposes that the buyers decision) cannot be “produced” consistently have for them. At present, quality normally in the same way, as is the case in industry, means quality as perceived by the customer, where the entire production process is intend- with many issues contributing to it.3 ed to be replicated time and time again. Each When one discusses quality in the context case is in many respects an unique occurrence. of judicial work, a few reservations are in The parties, as human individuals, are differ- order. Quality systems and the entire qual- ent, the factual basis of each case is different, ity management ideology were originally and also the “production environment” is dif- developed to meet the needs of industry, and ferent: Courthouses and courtrooms come in they do in fact serve very well in the context a variety of forms and standards and with a va- of mass production of goods. In industry, riety of equipment. In addition, the legislation the objectives of quality management are to offers the adjudicator with a wide discretion in maintain a given standard of production and the application of the law to the particulars of to eliminate the occurrence of fl aws. The qual- a given case, so as to come up with a decision ity standard is largely driven by the wishes of in precisely that case. the customer. As discussed already in the preceding chap- ter, quality management is nowadays often 3 Bengt Karlöf – Fredrik Helin Lövingssön: Johtamisen näkökulmat – peruskäsitteitä ja malleja. Helsinki 2004, driven by considerations of consumer service. p. 103. In this way, the quality of the process is being

14 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles benchmarked primarily to its responsiveness law and other rules, and how they are treated to the needs, requirements and expectations of in this context, are done as well as possible also the customer. The process is of high quality, if in view of the service principle. the customer is content with the product she is a critically important qual- receives. In contrast, it is acknowledged that ity criterion for the activities of the courts. even if the workings of the organisation is ef- Therefore, the legislator has already laid down fi cient in itself and the product is fl awless, the certain limits to the quality of court proceed- process still remains of poor quality unless the ings and of the . It would in fact be customer, in her role as external evaluator, is quite easy to measure the quality of adjudica- not content and if the product does not meet tion by equating quality with legality. It is, of her needs. course, a clear premise of the that As regards judicial work, it should be where the procedure or the decision are in fact kept in mind that the assessment of the qual- contrary to the law, they are concomitantly ity of the process cannot be based merely on also of poor quality. whether the customer is happy or unhappy. That being said, legality is a necessary, but Court proceedings and adjudication are ac- still not a suffi cient criterion for quality in ad- tivities that are bound by the law and marked judication. The phenomena of judicialisation by impartiality and the equal treatment of all and legal vicissitude have led to a situation comers. where the applicable law allows for a number In addition, customer satisfaction in the of options as to the arrangement of the pro- courts can of course not be taken to mean that ceedings and the content of the decision in an the customers – if this is the term we wish to individual case. The achievement of quality use of the participants in court proceedings proceedings and a high standard of judgment – should be satisfi ed by giving them what they require that the judge, as the leader of the want. This is so because the courts must oper- process, is both discerning and skilful in the ate within the bounds of the law and because selection of the most useful and the most ap- the parties to a case usually have opposing propriate methods and in the exercise of those wishes and expectations. In contrast, cus- methods. It should also be kept in mind that tomer satisfaction in the courts can mean that court proceedings involve a lot of activity that whatever the customers are given under the has not been regulated by law at all.

Example

A civil case, concerning medical malpractice, is pending in the District Court of Oulu. One of the witnesses is a specialist physician, resident and working in Helsinki (some 600 km away). The testimony of that witness pertains to a detail regarding the causal link between the alleged act and the damage. The credibility of the witness is not at issue.

Under the provisions of the Code of Judicial Procedure, the testimony of the witness can be procured in one of two ways: (i) the physician is summoned to appear in person in the Oulu Courthouse, or (ii) the physician remains in Helsinki and is questioned either by telephone or over a videoconferencing link.

No matter which of the options the judge selects, the procedure is legal and hence, from this narrow point of view, of good quality. However, the selection of option (i) will mean that the legal costs of the proceedings will increase to the detriment of the parties. Moreover, the wit-

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles 15 ness will experience considerable inconvenience and waste a lot of time. Her patient fl ow will suffer because she is out of the clinic for a day, which is a problem also from the societal point of view.

By selecting option (ii), these failings can be avoided. Experience has shown that many wit- nesses will not even require remuneration if they are heard by technical means in their home- town. From a quality perspective, it can be stated that option (ii) is preferable to option (i) in these particular proceedings. The situation would not be the same if the credibility and trustworthiness of the witness were doubtful. In such a situation, the correct choice from the quality perspective would be to summon the physician to appear in person, even if this did have the harmful effects referred to above, because the requirement of a materially correct judgment would not otherwise be satisfi ed.

2.2 Principles of Quality Benchmarking

The main principles on which Quality of . When the norms offer Benchmarking should be based are the soci- more latitude of interpretation, the role of the etal function of the courts, access to justice, courts as a law-making and law-developing in- procedural justice, trust in the courts and the stitution is also being strengthened. From the desired standard of quality in adjudication. societal point of view, the traditional percep- The following paragraphs contain a discussion tion is also that the courts uphold legal order on some aspects of these principles, to serve and social order. as background information for the Quality All of these different aspects of judicial Benchmarks to be formulated below in this work have a bearing on quality management, paper. even though the main focus of the develop- 1. Functions of the courts. When the quality ment of quality must of course be in the origi- of the activities of the courts is to be devel- nal and ultimate function of adjudication, that oped, the societal function of the courts is a is, the provision of access to justice and the very important starting point. - safeguarding of legal interests in an individual ally speaking, the courts are charged with the case. This has indeed been the primary focus exercise of the judicial power, and thereby in the design of the Quality Benchmarks. also with the provision of access to justice 2. Access to justice. In view of an individu- and the safeguarding of legitimate interests in al’s access to justice, it is important that the individual cases. The courts discharge this task courts do not provide only formal safeguards by deciding civil, criminal, petitionary and ad- for the interests of the individual. In addition ministrative cases brought before them. to the formal guarantees of legal security, the When they decide individual cases, the individual should have real, tangible chances courts promote justice and the realisation of pursuing her rights through the courts, in of material rights also in the society at large, other words, access to justice. A high standard because court decisions have a noteworthy di- of quality in adjudication is needed for the re- rective effect. In addition, the expansion of the alisation of true access to justice. It should be mediating tasks of the courts during the past easy to approach the court, the judges should decades has broadened the role of the courts operate with skill, effi ciency and professional- from pure adjudication to more diverse forms ism, and the decision of the court should be

16 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles just, lawful, reasonable and well argued. In in view of the fulfi lment of the tasks of the respect to access to justice, two of the most courts. If the people do not trust the courts, signifi cant fi elds for development are legal problems and disputes may remain unsettled, costs and the promptness of the proceedings. or the stronger party in a legal relationship 3. Procedural justice. As said, the tradition- may abuse his position with impunity. In al task of a court in a State bound by the rule addition, the task of the courts as guarantors of law is to apply the substantive law in indi- of legal tranquillity may remain unfulfi lled. vidual cases. To this end, court proceedings When the trust in the courts decreases, there have been constrained by statutory provisions may be a corresponding decrease in people’s and by judicial orders so that they would re- inclinations to obey the law in the fi rst place. sult in the most correct possible outcome both The trust that people put in the courts as regards the factual basis of the case and as is affected both by the own activities of the regards the application of the law. Lawfulness courts and by factors largely beyond the con- has of old been considered the true measure trol of the courts. In the research volume Luot- of quality both in procedure and in decision- tamus tuomioistuimiin [Trust in the Courts], making. by the National Research Institute for Legal During recent years, another issue has aris- Policy (NRILP Publication 160, Helsinki en beside lawfulness as a quality consideration; 1999), there was a list of research assump- namely, from the point of view of the custom- tions on the expectations relating to the work ers of the court, the lawfulness of the proce- of the courts, of a type that could in fact be dure and the judgment are not alone enough infl uenced by the courts themselves. These as criteria for the entirety of the quality of the pertained e.g. to the lawfulness and justness court system. When they evaluate the quality of the judgments, the and decision of of the work of the courts, people do not pay cases under conditions of equality of arms, the attention only to the outcome of the trial or fairness and impartiality of the proceedings, the fulfi lment of procedural requirements, but the foundation of the decisions on a factual they also expect that the judgment is arrived basis, the treatment of everyone with respect to in proceedings that they feel to have been and dignity, and the supply of clear and ac- fair and just. The formation of this perception ceptable reasons for the decisions. depends e.g. on whether the persons partici- The own activities of the courts can both pating in court proceedings feel that they have increase and decrease the trust that people put been allowed to have an effect on the process in the courts. In the selection of the quality and on the consideration of their case, and criteria in the benchmarks, due attention has how respectfully and attentively they have been paid to the positive impact that their been treated in the court. achievement would have on trust in the With due regard to the importance of the courts. The objective here has been that by perception of procedural justice, the Quality acting in accordance with the Quality Bench- Benchmarks contain a considerable number of marks the courts can self promote the trust elements that are not anchored directly to the that the people put in them. provisions of the law. 4. Trust in the courts. It is essential, if the rule of law is to be taken seriously, that the citizens trust in the courts. A lack of judicial credibility may have various adverse effects

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles 17 5. Ideal end state of adjudication. The Quality Benchmarks have been designed with a view on the following ideal end state.

The courts exist for the people. The participants in a trial enjoy the same rights to human dignity regardless of their role in the proceedings. Everyone is treated with respect, equitably, impartially, and with an appropriate service attitude.

The proceedings are carried out with quality and effi ciency, by utilising modern technology. The proceedings are prompt and do not give rise to unreasonable costs to either party. The judgments are just and lawful, as well as supported by persuasive and clear reasons.

The people perceive the activities of the courts to be just and competent, as well as have trust in their cases being handled independently and impartially by the court.

The judiciary possesses the best available legal expertise in the society, as well as the professional skills and competence needed for the settlement of legal disputes and confl icts.

2.3 Earlier Finnish debate on quality in adjudication and examples of how the courts are currently evaluated

1. At all times, the courts have been interested the Court of Appeal of Rovaniemi, are novel in the improvement of the quality of adjudica- in relation to the earlier pursuits in that they tion, even though “quality” as a concept has are systematically organised, take the long- not until recent years been used much when term view, solicit the participation of the discussing the standard of the activities of the judiciary and the stakeholders on the broadest courts. That being said, the judges probably basis, and evaluate the operations of the courts have always discussed these matters among through a holistic approach. themselves, as well as together with prosecu- One impetus for the launching of Quality tors and attorneys, hoping to determine how Projects has been the report of the Perform- court proceedings should be organised so that ance Management Working Group4, where they meet the requirements of quality and the quality issues of court operations were dis- how they should proceed to reach a just and cussed at some length. The Working Group lawful decision in the cases at hand. identifi ed four quality categories, relating to In the general courts, operational develop- (1) the process, (2) the decision, (3) customer ment has traditionally proceeded by way of service, and (4) organisation. training on legislative reforms, arrangement According to the Working Group, quality of judges’ conferences in the Courts of Appeal in the process is reached through the equita- and organisation of colloquia with prosecutors ble and courteous treatment of the parties, and attorneys. effi ciency and appropriateness, reasonable The Quality Projects that have been throughput times, uniformity of the process, launched in many courts over the past few years can be seen as an extension of the pre- 4 Laatu ja tuloksellisuus tuomioistuimissa. Report of the ceding development work. Quality Projects, Working Group on Performance Management in Courts of such as that of the courts in the jurisdiction of Law, 17 December 1998. Ministry of Justice.

18 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles the realisation of public access to the proceed- text of the performance management system ings, and reasonable costs. Quality in the adopted for the courts. Each court conducts decision is reached through lawfulness, cor- performance negotiations with the Ministry of respondence to the common sense of justice, Justice every year. In the course of these nego- adequate and clear reasons, responding to the tiations, an estimate of the number of incom- questions that have been raised, comprehensi- ing cases is set and agreement is reached on bility, structural uniformity, material uniform- the number of decided cases and the necessary ity, linguistic correctness, and predictability. money and personnel resources of the court. Quality in customer service is reached through In addition, the successfulness or otherwise of advice and guidance, expertise, courteous and the operations of the current year is discussed objective treatment, a service attitude, service as a part of the performance negotiations. on the customer’s own language, public rela- Performance targets are set on the average tions and communication, and the availability throughput times, number of decided cases, of services. Finally, quality in organisation is productivity and effi ciency. As of 2005, ac- reached through goal-oriented management, cording to the requirements in sections 65 and functioning organisation, functioning work 65a of the State Budget , the operations processes, clarity of responsibilities, compe- of the courts are evaluated also by means of tence and training, internal information pro- the Annual Reports drawn up by the general vision, and a good workplace atmosphere. courts, on one hand, and by the administra- The importance of quality improvement tive courts, on the other hand. work in the courts has been stressed also in In addition, many individual District a number of quite recent offi cial reports and Courts and Courts of Appeal have their own other documents. The Commission of In- statistical benchmarks and indicators for the quiry into the Development Trends of the monitoring of incoming cases, decided cases, Court System noted in its report (KM 2003: pending cases and throughput times. A more 3) that the quality improvement work now traditional means of evaluating the work of under way in the courts should be stepped up. the District Court is the inspection visit that According to the Commission, this required the Court of Appeal pays to the courts in its inter alia the development of various evalu- jurisdiction from time to time. ation and benchmarking techniques with a On a more general level, the evaluation view to the improvement of the operations of of the operations of the courts has proceeded the courts. The 2004 Annual Report of the also by way of research on the trust of the citi- General Courts, the fi rst report of its kind ever zens in the courts, e.g. that produced by the issued, also took a positive stance to the qual- National Research Institute for Legal Policy. ity improvement work pursued by the courts. However, the surveys on which this research An additional impetus for the intensifi ca- is based are directed at the general public, tion of quality improvement work in the courts which means that the respondents have not comes from the 2004 reform of the legislation necessarily self been involved with the courts. on State fi nances and the budget. In the fu- In such cases, the research has really pertained ture, the provisions in this legislation require to the public perceptions about the courts the setting of quality targets for the courts and rather than to more analytical impressions of the monitoring of their achievement. the quality of court work on the basis of the 2. At present, the quality of the operations personal observations of the respondent. of the courts is evaluated mainly in the con-

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Current situation and main principles 19 1 2 3 4

3.1 Sweden 3.2 The Netherlands 3.3 The United States COMPARATIVE SURVEY 3 COMPARATIVE SURVEY

Over the past few years, the quality of court The present section contains a brief survey operations has been a topical issue in a of the debate that has been going on in Swe- number of countries. The debate has ranged den, the Netherlands and the United States from the very concept of quality in adjudica- on the quality of adjudication and on quality tion to the ideas and aspirations relating to the benchmarks. development of tools and methods for quality A brief mention is due also of the Euro- benchmarking. pean co-operation towards the development of the quality of court operations under the auspices of the Council of Europe (CEPEJ).

3.1 Sweden

Quality debate 1997 Courts. In addition, the attendees included representatives of the prosecutors, the attor- A broader debate on the quality of court neys, the Parliamentary Ombudsman and the operations was held in Sweden as early as then State Audit Offi ce (Riksrevisionsverket). 1997. Domstolsverket, the central court ad- The proceedings of the seminars have been ministration of Sweden, organised two one- collected and published as a Domstolsverket day seminars about the meaning of quality Report Kvalitet i domstolsverksamhet (25 May in the context of the courts. These seminars 1997 dnr 184–1997). were attended by judges from the Swedish Su- In the report, the main quality aspects preme Court, Supreme Administrative Court, of court operations were divided under four Courts of Appeal, Courts of Administrative headings: (1) quality aspects of the decision, Appeal, District Courts and Administrative (2) quality aspects relating to throughput

22 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey times, (3) quality aspects of the treatment of service must be extended to everyone work- the customers of the court, and (4) quality as- ing at the court. The judge must behave in a pects relating to the competence and training manner preserving the authority of the court, of judges and other court personnel. but at the same time she must treat the parties The fi rst characteristic of a quality decision courteously, respectfully and also otherwise is that it is correct from the legal point of view. in an appropriate manner. The credibility of In addition, it should contain comprehensive the work of the courts requires that the judges and comprehensible reasons and a coherent carry themselves in accordance with the and precise statement of facts. The Report of their position and e.g. dress properly. It is draws attention also to the layout of the court important that the courts operate with preci- decision as a quality criterion. A quality deci- sion and that they see to it that the customers sion is pleasing to the eye. Moreover, in addi- are informed in case there is an unexpected tion to legal correctness, the decision should development in the proceedings. In criminal be fl awless also linguistically and typographi- cases, the attention of the court must not only cally. be on the defendant, but also in the complain- The time factor is seen as an essential ele- ant and the witnesses. ment of quality in the Report. One of the Another major element involved in the most important criteria of high quality is that quality of the courts is the competence and the cases are heard and decided as promptly as training of the personnel. In order to achieve possible. In order to reach a quality through- quality in its operations, the court’s personnel put time, the judge must pursue effi cient case must be well trained and continued training management methods. The process must be should be on offer at all times. There should planned in detail and with consistency. The also be enough time to take advantage of the case must be decided as soon as it is ripe. training on offer; this must be taken into The age breakdown of pending cases must be account when the resources of the court are controlled and individual throughout times being set. The courts must pursue constant monitored. Due attention must be paid to dialogue on procedures, case-law, drafting the prioritisation of pending cases. The courts conventions and the quality issues arising in should have proper operating plans. Even the context of a court. The exchange of expe- though promptness of proceedings is an ele- rience among judges should be promoted also ment of quality in adjudication, it is noted in by other means. The recruitment of judges, the Report that the requirement of prompt- and especially of chief judges, is a very im- ness may under certain circumstances run portant issue in its own right. Moreover, the against the demands of appropriate treatment terms of service of court personnel must be of the parties and the correctness of the even- appropriate, as must their working conditions tual decision. The parties must be allowed suf- and the technical support available to them. fi cient time to prepare their cases, for instance Finally, due care must be taken to ensure that for the purpose of a hearing. In like manner, no judge neglects his or her duties. the judge must be reserved a suffi cient time for The Report contains some remarks also drafting the judgment. on the question of how the quality of the In the Report, the treatment of the custom- court could be described or benchmarked. It ers is seen as a decisive factor in determining is noted, in this respect, that it is possible to what the public and the media think of the measure e.g. the number of incoming cases, courts. The requirement of good customer decided cases, appeal propensities, appeal suc-

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey 23 cess rates and throughput times. That having for the continuation of quality improvement been said, it remains an open question how work in the courts, as well as for the methods and to what degree these indicators can be and strategy of the quality improvement work. used to describe or benchmark the quality In addition, the working group was to come of court operations. Accordingly, in order to up with ideas for the propagation of quality obtain a fuller picture, the statistics should improvement work at the courts. be supplemented e.g. by surveying outsiders The quality working group reported in about their perceptions of the courts and court September 2005 on the quality improvement operations or by group evaluations carried out work at the courts. The report, titled Att Ar- by the judges themselves. It is also noted in beta med Kvalitet I Domstolsväsendet, covers the Report that high quality in adjudication e.g. the concept of quality in the courts, the requires also that the control system functions reasons for quality improvement work and the well and that the chief judges have both the various options for proceeding with this kind competence and the responsibility to manage of work. The working group proposed that their courts. every court begin at once with a programme of systematic quality improvement work, with Current situation the support and supervision of the central ad- ministration of the court system. According to A broad-based development project encom- the quality improvement strategy drawn up by passing the entirety of the court system has the working group, each court, or a number been under way in Sweden for several years. of courts together, should appoint a quality As a part of that project, there has been e.g. improvement group and select a quality co- a noteworthy process of mergers of District ordinator. Possible fi rst choices for quality im- Courts. A development group attached to provement targets are e.g. throughput times the Domstolsverket (Utvecklingsgruppen i and the treatment of individuals in court. Domstolsverket) works on matters relating The report covers also the follow-up of to court development, such as organisational quality development and the related bench- and work process reform. The development marking efforts. According to the working projects are seen also as mechanisms for the group, the benchmarking of quality requires improvement of quality in the courts. In ad- the defi nition of quality criteria and the es- dition, it has been constantly stressed in the tablishment of a scale of good quality and, re- development of the courts that high quality spectively, of poor quality. In the view of the should be something that the courts provide working group, the defi nition of quality crite- as a matter of course.5 ria should not be a task for individual courts, In addition to the more general develop- but rather for the court system as a whole. ment work, Sweden has recently launched a project for the inception of systematic quality improvement work in Swedish courts. Issues of quality were discussed as one of the two main topics of the 2004 Court Con- ference, with the participation of the chief 6 judges from every court in Sweden. It was 5 See e.g. the booklet Så här vill vi ha framtiden. Vision för decided at that Court Conference to set up a domstolsväsendet. quality working group to draw up a proposal 6 Domkretsen nr 3/2004.

24 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey 3.2 The Netherlands

Between 1998 and 2002, the Netherlands im- ration and capable execution. Observations plemented a programme for the modernisa- are made also of the propensity of the parties tion of the legal system, seen to require multi- to appeal against the judgments of a particular ple evaluation studies of the current situations judge, as a proportion of the total number of and estimates of the future. An evaluation judgments by him or her. plan was drawn up for this purpose. Parallel The third sector relates to an issue that has to the evaluation plan, the Dutch Council for been subject to much discussion in recent years the Judiciary (Raad voor de Rechtspraak) intro- in a number of countries, that is, procedural duced a quality project for the development justice. The observations in this sector pertain and implementation of a coherent and exten- to the attitude of the judge to the parties and to sive quality management system in the courts the treatment of the customers of the court. For of the Netherlands. One of the subject areas example, it can be asked whether the judge lets of the project was to design a quality bench- everyone to have their say in court, whether he marking system for the courts and to promote listens to both parties, whether he explains the its adoption. It was deemed essential for any process to the parties and what kind of reasons further development work in the Netherlands he supplies for his judgment. that the successfulness of the operations of the The fourth sector concerns the equitability courts is measured. of court operations and the equal treatment of There are fi ve benchmarking sectors in the the parties. Also in the Netherlands, there have benchmarking system now in experimental been problems in determining how to measure application in the Netherlands. These sectors the uniformity of judicial decisions and adju- are monitored through “effi ciency indicators”, dication in an objective and straightforward that is, those characteristics of the particular way – it is simply too time- and resource-con- sector that can be covered by relatively simple suming to set every judgment side by side and and inexpensive information collection meth- evaluate them. For this reason, the uniformity ods. The information may be either objective of adjudication can only be evaluated by indi- data or subjective opinions; it is collected for a rect methods. Customer surveys will be used limited number of effi ciency indicators, select- to fi nd out what the parties think of the uni- ed primarily on the basis of their usefulness. formity of the adjudication. Another method The fi rst sector is the impartiality and is to research whether the courts have access integrity of the judges. Within this sector, the to tools that can be deemed to be of use in the observations pertain e.g. to the allocation of promotion of uniformity in adjudication. incoming cases in the court and to whether The fi fth, and fi nal, sector pertains to the parties and the others participants in court the questions whether the proceedings are proceedings, such as prosecutors and attor- duly prompt and whether the judges keep to neys, feel that the judges operate impartially the agreed process schedules. In this sector, the and with integrity. throughput times and the productivity of the The second sector is the competence of the judges in various case types are monitored. judges, which is studied e.g. through customer Over-productivity is controlled as well. This surveys. The participants in court proceedings may be a sign of overwork, which, in the long are asked whether their impression of the op- run, is not in the best interests of the custom- eration of the judge is of conscientious prepa- ers, the personnel or the society at large.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey 25 The evaluation proceeds through regis- relating to the services and products provided tration, inspections and customer surveys. by the courts. A distinction has been made be- Registration, in this context, means that there tween the parties (general customers) and the already is a certain amount of information professional customers (prosecutors and other available in the courts’ information systems. regular court attendees, such as experts, inter- This is converted into a format useful for preters, notaries public, administrators evaluation by means of specifi cally designed and child welfare offi cials). The data compiled computer applications. Inspections, for their by means of the various measurement meth- part, give rise to independent conclusions de- ods will be mutually reinforcing and ensure riving from observations made of the courts. A that a fully rounded impression of the work of checklist has been drawn up for the inspection the courts can be formed. Registration yields process. Customer surveys are used for the objective data, inspections mainly objective measurement of customer satisfaction levels data and customer surveys subjective data.

3.3 The United States

In the United States, the development of gen- the standards is subdivided further into very eral standards for the evaluation of the per- detailed measures. formance of court operations began already in In the performance area relating to Access 1987.7 The Trial Courts Performance Stand- to Justice, the interest is in the assessment of ards and Measurement System was introduced whether the courts are open and accessible. in 1995, at which time its implementation as Some factors that have a bearing on this issue a regular part of the control and management are the location of the courthouse, procedures, systems of the courts began. and the courtesy of the court personnel. There There are fi ve performance areas compris- are fi ve standards in this performance area: (a) ing the performance standards: (1) Access to Public Proceedings, (b) Safety, Accessibility Justice, (2) Expedition and Timeliness, (3) and Convenience, (c) Effective Participation, Equality, Fairness, and Integrity, (4) Inde- (d) Courtesy, Responsiveness and Respect, pendence and Accountability, and (5) Public and (e) Affordable Costs of Access (compris- Trust and Confi dence. ing not only monetary costs, but also the time In each of the performance areas, there requirement of court proceedings). are several more detailed standards that lend In the second performance area, that themselves for measurement; in all there relating to Expedition and Timeliness, there are 22 such standards. The standards have are three standards: (a) Case Processing, (b) not been intended as rigid or strict rules by Compliance with Schedules, and (c) Prompt which the courts should operate, but rather Implementation of Law and Procedure. as recommendations that may provide some In the third performance area, that relating aid in the direction of the operations. Each of to Equality, Fairness, and Integrity, the lead- ing principle is that the courts should provide equal justice to all as required by the Constitu- 7 www.ncsconline.org. tion. There are six standards in this perform-

26 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey ance area: (a) Fair and Reliable Judicial Proc- ess, (b) Function, (c) Court Decisions and Actions, (d) Clarity, (e) Responsibility for Enforcement, and (f) Production and Preser- vation of Records. In the fourth performance area, that re- lating to Independence and Accountability, there are fi ve standards: (a) Independence and Comity, (b) Accountability for Public Resources, (c) Personnel Practices and Deci- sions, (d) Public Education, and (e) Response to Change. In the fi fth, and fi nal, performance area, that relating to Public Trust and Confi dence, there are three standards: (a) Accessibility, (b) Expeditious, Fair, and Reliable Court Func- tions, and (c) Judicial Independence and Accountability. Whereas in the other per- formance areas these standards are evaluated mainly from the viewpoint of the participants in the court proceedings, in this particular performance area the viewpoint is the broader one of the general public and of possible fu- ture customers of the courts. The key phrase here is that “Justice should not only be done, but should be seen to be done”. The measurement methods used in the context of these standards include observa- tion, simulations, interviews, evaluations, document review, inspections and assessments produced by special assessor teams.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Comparative survey 27 1 2 3 4

4.1 Introduction 4.2 Aspects and quality criteria 4.3 Point scale for analysis 4.4 Choice of the method of evaluation 4.5 Pilot project for the Quality Benchmarks QUALITY BENCHMARKS FOR ADJUDICATION 4 QUALITY BENCHMARKS FOR ADJUDICATION

4.1 Introduction

In the drafting of these Quality Benchmarks certain more detailed applications based on for Adjudication, we have utilised the remarks the same. We have also studied the quality on judicial quality in the legal literature and improvement work undertaken in the courts in various reports and analyses pertaining to of a number of other countries, as well as the the courts. An especially important source has quality criteria in application there. been the quality assessment and development That being said, we have not adopted any work that has been under way since 1999 in of the general quality management models or the Quality Working Groups operating as a foreign Quality Benchmarks for use as such part of the Quality Project of the Courts in here in Finland, nor have we indeed even the Jurisdiction of the Court of Appeal of made the effort to do so. Court operations, Rovaniemi. In this way, one can describe the and especially adjudication, are such a sui Quality Benchmarks as a distillation of the generis activity in relation to the general serv- views of the entire judiciary in the region, and ice industries or other professional pursuits of the attorneys and prosecutors participating that there is no point in trying to use ready- in the quality improvement work, relating made models. In like manner, there was no to what criteria are relevant to the quality of justifi cation for the wholesale import of the the work of the courts and how these criteria judicial quality management systems of any should be characterised. of the other countries studied. Notwithstand- In the design of the Quality Benchmarks, ing the international similarities in the fi eld of there have been important points of compari- procedure, the points of main emphasis in the son found in the general quality management development of quality in adjudication must models8 used in various organisations and in still be closely linked to the judicial tradition of the individual country. 8 Especially the European Foundation for Quality Ma- With due regard to these considerations, nagement (EFQM) and the Balanced Scorecard (BSC). the Quality Benchmarks have been drafted to

30 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication serve as a support mechanism for the evalua- aspects. The quality criteria have then been tion of the adjudicative work of the courts in described by means of examples of the salient the Court of Appeal jurisdiction. It should be characteristics of the criterion in question. In noted, however, that the benchmarks are gen- addition to this defi nition of the benchmarks eral in nature and can therefore be applied in proper – that is, those issues that we wish to the evaluation of judicial quality in the general measure – the Quality Benchmarks of course courts anywhere in Finland. cover also the determination of the point scale The drafting of the Quality Benchmarks for analysis and the selection of the evaluation has begun with the defi nition of the sectors methods. of adjudication – aspects – where the quality The following sections provide additional is to be assessed. Thereafter, a set of qual- detail on the contents of the Quality Bench- ity criteria has been identifi ed for each of the marks.

4.2 Aspects and quality criteria

The proposed Quality Benchmarks consist of focus solely on the quality criteria that have six aspects, which contain a total of 40 quality a direct bearing on the quality of the process criteria: and decision relating to matters subject to 1) the process (nine quality criteria) adjudication. 2) the decision (seven quality criteria) The intention has been to identify the 3) treatment of the parties and the public most salient quality criteria from each aspect, (six quality criteria) combining to produce quality. Court proceed- 4) promptness of the proceedings ings, with all their intricacies, would allow for (four quality criteria) the selection of any number of quality crite- 5) competence and professional skills of the ria from each aspect. Accordingly, there has judge (six quality criteria) been the need to strike a balance between the 6) organisation and management of various criteria, thereby getting to the most adjudication (eight quality criteria) important ones for the particular purpose. At- The intention has been to identify the tention has been paid e.g. to how the quality aspects so that they would provide the maxi- criterion serves the important premises of the mum of coverage of those of the operations of evaluation discussed above in chapter 2.2, that the courts that combine to produce quality. is, access to justice and the credibility of the As has been noted above, the benchmarks courts. It should also be noted that not all of are not intended for the evaluation of the the criteria that have been selected are sharply operations of the courts in total, but instead delimited; instead, they may involve a certain for the concentrated assessment of the core of degree of overlap, even redundancy. Moreo- the adjudicative function, the process, and its ver, the quality criteria have been selected so quality. Hence, for example, the aspect relat- that they can be applied in the assessment of ing to court organisation and management is the quality of adjudication as easily as possi- not to be used for the evaluation of the organi- ble, regardless of whether a criminal or a civil sation of the court and the successfulness of case is concerned. its management as a whole. The benchmarks

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 31 Each of the quality criteria have been a trial mainly on the basis of the fairness and described in more detail by listing some of equitability of the proceedings, rather than the its most salient characteristics. This listing is of end result. not exhaustive. Nonetheless, we have deemed For all these reasons, the evaluation of it important to describe the characteristics at the quality of judicial process is especially some depth, with a view to the practical im- important for the parties. It is nonetheless plementation of the benchmarks and the eval- important also from the societal point of view, uation process. It is also possible that some of because a high standard of judicial process is the characteristics of the quality criteria may conducive to increasing the credibility of not appear mutually exclusive. In this case, good only the courts, but also the whole of the legal quality can be attained by combining the cri- system. Moreover, the quality of the process teria in individual cases so that both are met as is not without signifi cance to the individual closely as possible. judge, either, because the core of the work of The quality criteria and their characteristics the judge, the production of a decision, takes have been summarised in the table that is an- place within the framework formed by the nexed to this paper (Annex 2). The following procedure. A well organised process serves as a chapters contain brief reasons and viewpoints solid basis for making a quality decision. relating to the choice of each of the aspects Starting from these premises, the proc- and quality criteria within the aspects. A brief ess may be looked at in the light of many commentary on the contents of the quality quality criteria indeed. In the defi nition of criterion is also provided. The characteristics the criteria, it is vitally important to keep in of the quality criteria, which appear in full in mind the viewpoint of the participants in the the table, have not been covered exhaustively, proceedings – customer satisfaction should but rather for purposes of illustration. thus be considered, even though the term “customer” is not without its problems when 4.2.1 Aspect 1: The Process it comes to the work of the courts. The process is of high quality, when it has provided proper Choice of the aspect procedural guarantees for the enforcement of people’s rights and when the people have The proper functioning of the judicial process perceived the process to have been reliable and has a direct effect on whether the parties can fair. The selection of quality criteria relating to enforce the rights that they are attempting to the process has been based primarily on these enforce by recourse to the courts. In a nut- considerations. shell, process is a means for the enforcement of material law. Accordingly, the signifi cance Choice of the quality criteria of the process can be seen mainly as being con- stituted of instrumental considerations. That 1.a) The very fi rst quality criterion relating being said, the current view of judicial process to the process is that the proceedings have been is one where there is also intrinsic value in the open and transparent vis-à-vis the parties. The process itself; the materially correct outcome transparency of the proceedings is intrinsi- must arise from a just process, and moreover cally desirable. For the parties, it is an essential from a process that is perceived as just. Re- guarantee of a fair trial, e.g. by reason of it search into procedural justice has shown that being closely linked to the principle of audi people form their opinion on the fairness of alteram partem.

32 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication Openness and transparency mean not It should be noted, however, that the expe- only that the parties have been informed of dient arrangement of the proceedings does not the stage of the proceedings, but also that the mean that minor cases were to be considered parties have been allowed to make their case, more sloppily than major ones; instead, the as well as to comment on their opponents’ procedural measures used in the case should claims. To this end, it is the responsibility of be measured so that they correspond to the the court to practise informative case manage- level needed for the high-quality considera- ment and advise the parties and the other tion of the individual case. As a matter of fact, participants of the course of the proceedings. the current set of procedural provisions leave a At all times, the parties must be aware of the relatively broad latitude for the court to carry current stage of the proceedings and of what is out the proceedings in the manner and thor- to be expected at later stages. oughness best suited for the case at hand. For example, expediency as a quality crite- 1.b) The second quality criterion relating to rion requires that the composition of the court the process is that the judge has acted independ- follows the nature of the case and not e.g. the ently and impartially. The independence and resource constraints of the court. Expediency case-by-case impartiality of the court and of of proceedings requires also that the hearing the individual judge are fundamental princi- schedule has been agreed on with the parties/ ples of justice. attorneys. The judge is allowed to decide the case solely on the basis of the material presented 1.d) When the procedure in the courts of in court and solely on the basis of the legisla- fi rst instance was reformed in 1993, one of tion in force and of other accepted sources the most important goals relating to civil of law. The case-by-case impartiality cannot procedure was the promotion of settlements be compromised e.g. by the judge practising in court. Indeed, a genuine settlement is too effective and too active case management most often the least expensive outcome avail- methods, albeit that skilful case management able to the parties. In addition, settlement is is an important guarantee of quality in adjudi- conducive to maintaining the cordiality of the cation in its own right (see point 1.e). Another relationship between the parties and to com- core element of independence and impartial- mitting the parties to the outcome. ity is that the judge has not let media pressure, For this reason, the fourth quality criterion the public opinion or any other outside infl u- relating to the process is that active measures ence to affect the hearing and the decision in have been taken to encourage the parties to set- the case. tle (civil cases and the civil liability issues in criminal cases). It is, of course, a given that in 1.c) The third quality criterion relating to a quality process the parties are not put under the process is that the proceedings have been duress so as to have them settle the case and organised in an expedient manner. Expediency that the underlying reason for seeking a set- is one of the leading procedural principles. To tlement is not that this is in the interests of this end, the proceedings should be organised the judge or the court, e.g. through the easing as simply and informally as possible, with a of their workload. If, during the course of the view to the extent and nature of the case and discussions, one party clearly objects to the the need of the parties for protection under attempts to reach a settlement or refuses to the law. settle, the case must be dealt with in regular

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 33 proceedings and decided by way of a judg- people from enforcing their rights. The sixth ment. The parties always have the absolute quality criterion relating to the process aims right to have their case decided by a judgment for the control of these costs. rather than a settlement. According to the quality criterion, the pro- Some of the characteristics of active en- ceedings must be arranged and carried out so that couragement to settlement are that the judge a minimum of expenses is incurred by the parties has kept the possibility of settlement a live and others involved in the proceedings. This re- topic throughout the process, in so far as quires due attention to the effi cient progress possible, and that the judge has thoroughly of the case and the elimination of unnecessary explained to the parties the benefi ts and ad- interim stages, because the more activity is vantages of settlement vis-à-vis a judgment. required from the attorneys, the more will they bill their clients. Thus, for instance, the 1.e) Quality in adjudication is quite depend- written preparation of a civil case must not be ent on the successfulness of the process man- unduly prolonged. In the main, a preparatory agement by the judge. Even though the parties hearing should been called after the response, in the general courts have the primary respon- without requesting an additional comment sibility for the procurement of trial materials from the plaintiff. In addition, the case should and for the information available to the court be prepared and ready for the main hearing being as complete as possible, the responsibil- after a single preparatory hearing. ity for the thoroughness of the hearing in the In recent years, one of the most impor- case remains the responsibility of the court. tant cost-reduction measures available to the For the judge, this means that the process courts has been the use of modern technology must be managed effectively and actively (both during the proceedings. E-mail, telephone, procedurally and substantively). This is the fi fth videoconferencing and other technological quality criterion relating to the process. advances should be utilised as often as possible Effective and active process management and as often as cost savings can be achieved in means e.g. that the presiding judge sees to this manner. it that the proceedings are structured and scheduled as a coherent whole. In addition, 1.g) The rules and principles of judicial proce- the judge must pose the necessary questions, dure govern the measures that must be taken, as is her right, to make sure that the case is or can be taken, in the proceedings. That be- thoroughly examined — naturally with due ing said, procedure has no intrinsic virtue; it regard to the differences between civil and is a means to achieve the goals of certainty, criminal cases. Under the current view, it is effi ciency and fairness in a trial. The achieve- especially important that the judge exercises ment of these goals require that the proceedings process management methods so as to rectify have been organised in a fl exible manner, which obvious mistakes by the parties, if their rights is the seventh quality criterion. would otherwise be compromised. As a quality criterion, there is certain over- lap between the fl exibility of proceedings and 1.f) The high cost of court proceedings may the criterion of expediency (1.c). The focus sometimes be a barrier to a case being brought is nonetheless different. For instance, the to court for resolution even in the event that possibilities offered by the procedural rules there would be an objectively identifi ed cause should be utilised with skill, as required by to do so. The cost effect of a trial may prevent the circumstances and the nature of the case.

34 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication Flexibility of process means also e.g. that the connection to the requirement of procedural scheduling of the proceedings takes note justice, discussed above. of the justifi ed requirements of the parties It is characteristic to a court decision that and the attorneys and that the practicalities it arises from the interaction of the judge and of the proceedings have also otherwise been those participating in the proceedings. The discussed with the parties and their attorneys. information available to the judge and the The utilisation of modern technology, as re- information available to the parties are com- ferred to above, opens also many new avenues bined in the production of the decision. The for the fl exibility of process. quality and the value of the outcome of the proceedings depends largely of how successful 1.h) The openness of the proceedings is an this interaction is. According to research on essential element of a fair trial. Open proceed- procedural justice, people consider the pro- ings are an important guarantee of the parties’ ceedings to have been fair if they have been protection under the law. Moreover, openness allowed to interact with the court. increases the credibility of the courts among From these premises, it is important that the public. With a view to all these considera- the participants in the proceedings feel that tions, the eighth quality criterion relating to they have been allowed freely to make their the process is that the proceedings are as open to case (cf. criterion 1.a above). In addition, the the public as possible. participants should be treated so that they feel If restrictions are envisaged to the open- that they have been heard and understood. ness of a given process, the restriction should For instance, it is important also for this rea- be limited to what is strictly necessary. Like- son that the judge looks at the speaker. Thus, wise, when orders on the secrecy of the trial in addition to formal hearing, an effort should materials or the decision are made, the secrecy also be made to ensure that the participants should be restricted to what is strictly neces- feel that they have been genuinely heard. sary. Public summaries of secret decisions should be issued, indicating the main thrust 4.2.2 Aspect 2: The Decision of the case and the reasons for the decision. The openness of the proceedings is not Choice of the aspect without its shortcomings. With the expansion of the reach of the media, the disadvantages It is the duty of the general courts to decide that publicity may cause to the privacy of the the civil and criminal cases brought to them individual and the protection of private life for a resolution. The parties bring a civil have been brought to a sharper relief. Con- case to court in the express purpose of hav- comitantly, the achievement of the quality cri- ing their dispute resolved. In a criminal case, terion relating to openness requires that even the essential set-up of the process is the same. though openness is ensured in the proceed- Albeit that procedure, and the fairness of the ings, it has also been guaranteed that personal procedure, have also some intrinsic value, as privacy is not thereby violated nor the smooth has been discussed above, the quality of the progress of the proceedings compromised. decision of the court is a critically important aspect of court operations. The decision is the 1.i) The ninth, and fi nal, quality criterion product on the basis of which the successful- relating to the process is that the proceedings ness, or not, of the operations of the court is have been interactive. This criterion has a close ultimately evaluated.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 35 The rule of law requires that the parties are most important objectives of court proceed- entitled to place high expectations on the deci- ings. The quality criterion means that the sion of the court, both as regards its outcome decision is in accordance with the law in force and as results its stated reasons. A court deci- and that it is based only on established facts. sion must necessarily be well argued, and not Moreover, the correctness of the decision merely in accordance with the law and justice. should be clear on the face of it. If the court arrives at the wrong outcome in Because the determination of whether a de- its decision, no measure of high quality in the cision is in accordance with justice or the law process or in the other aspects of adjudication is in many cases a quite relative pursuit, the will remedy this failure. Under circumstances achievement of this quality criterion must be such as these, the main objective of judicial assessed more by way of indirect characteris- procedure, access to justice, will not have been tics than by way of direct ones. A decision can achieved at all. be assumed to be just and lawful if, in addi- For the parties, the high quality of the tion to legislation, the prevailing case-law and reasons to the decision are an important other accepted have been taken guarantee of their protection under the law. into account in its formulation. In addition, On the basis of the reasons, the parties can the specifi c characteristics of the case at hand consider whether the court has exercised the must have been recognised in the formulation judicial power correctly and refl ect on their of the decision. The achievement of the qual- need for appeal, and the likelihood of success ity criterion is promoted also by taking due in appealing. The reasons make it possible to note of the recommendations of the Quality evaluate the operations of the courts also in a Project relating to practice and procedure and broader context, that of the society at large. using them as a point of comparison to an in- Wrong decisions, and badly reasoned deci- dividual judge’s practices and usages. sions, diminish the credibility of the courts and of the individual judges. Indeed, it is 2.b) According to the second quality criterion, hardly necessary to justify the importance of the reasons for the decisions should convinced the the assessment of the quality of the judgment parties, legal professionals and legal scholars of from the viewpoint of the judge – decision- the justness and lawfulness of the decision. making, covering both the exercise of judicial The achievement of this quality criterion discretion as to the outcome and the supply depends on the impression that the parties of reasons for the same, forms the very core of get of the reasons of the judgment. Even if the judicial profession and is therefore a most the decision were both just and lawful, it is a important fi eld for work towards the improve- problem in regard to the tranquillity of legal ment of the quality of adjudication. relationships if the reasons of the judgment The selection of quality criteria relating to fail to persuade the reader that this is the case. the decision has been based on these consid- Admittedly, it is diffi cult, perhaps impossible, erations. to draft the reasons to a decision so that they will convince everyone of the correctness of Choice of quality criteria the outcome of the decision. For this reason, the relevant addressee group for this quality 2.a) The fi rst quality criterion relating to the criterion has been restricted to the parties, decision is that the decision is just and lawful legal professionals (judges, prosecutors, attor- (correctness of judgment); this is one of the neys), and legal scholars.

36 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 2.c) The third quality criterion relating to Legal terms should be avoided or their mean- the decision is that the reasons are transparent. ing should at least be explained when they Open society requires that also adjudication are used in the decision. The clarity of the is transparent. In this respect, the transpar- decision can also be improved by the use of ency of the reasons is particularly important. headings and a consistent structure. Even if the reasons are formally in the public domain, openness will not be real unless they 2.f) According to the sixth quality criterion, indicate transparently the real grounds on the decision should have a clear structure and which the decision is based. be linguistically and typographically correct. Transparency means also that if there have Clarity is improved when the structure of been more than one seriously considered al- the decision makes distinctions between the ternative, all of these have been covered in the background of the case, , reasons, and reasons. Transparent reasons comment also outcome. Moreover, the decision should con- on arguments against the eventual outcome, tain no linguistic or typographical errors and as well as indicate why the arguments for the it should also otherwise be stylistically well outcome have prevailed in the case at hand written. Also the layout of the decision should (pro & contra) be considered.

2.d) The fourth quality criterion relating to 2.g) The seventh, and fi nal, quality criterion the decision is that the reasons are detailed and relating to the decision pertains to the pro- systematic. They should indicate which rel- nouncement of the decision, that is, its oral evant issues are at dispute and which are not. delivery to the parties and the public in the With a view to this aim, the reasons should event that it is not issued later from . be drafted in a problem-oriented manner. According to the quality criterion, the deci- Detailedness means that positions have been sion should fi rstrst and and foremost foremost be pronounced taken in the reasons on all evidence that has so that it can be, and is, understood. Thus, for been accepted and on all issues at dispute. A instance, the decision should not merely be systematic approach, for its part, means that read out aloud in a monotone as written, but different legal issues have been settled sepa- it should be delivered using regular, spoken rately and in a sensible order. language. Owing to the difference in the registers of written and spoken language, the 2.e) The reasons of the decision is where the latter is easier to understand when heard. As is judge informs the parties and the general pub- the case with justifi cation in general, also the lic of how the court has received the points pronouncement should take place in a prob- raised by the parties and what has been their lem-oriented manner. signifi cance to the resolution of the case. In When pronouncing the decision, the judge order for this to succeed, the reasons of the deci- should look at the relevant party and maintain sion must be comprehensible; the fi fth quality eye contact. Also, questions should be asked criterion relating to the decision. during and after the pronouncement so as to According to the quality criterion, the lan- ensure that the parties understand the deci- guage used in the decision should be such that sion. This is not to be taken to mean, how- also an outside reader can easily understand ever, that the pronouncement of the judgment the main thrust of the decision. Comprehen- would take the characteristics of a debate. sibility requires the use of general language.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 37 4.2.3 Aspect 3: Treatment of the Choice of quality criteria parties and the public 3.a) The fi rst quality criterion relating to the Choice of aspect present aspect of treatment pertains to all of the other criteria therein. Namely, the partici- The breakthrough of fundamental rights pants in the proceedings and the public must at and and the recent research on all times be treated with respect to their human procedural justice have over the past decade dignity. Therefore, regardless of the work of brought new light on the issue of how the par- the judge becoming routine in some respects, ties and the public are in fact treated in court. and regardless the possibility of a certain judi- The earlier times of “old man judge” are in- cial cynicism, the judge should not treat the evitably past, even though they were clearly participants in the proceedings as impersonal not without their advantages. Moreover, ac- objects of judicial measures, but rather as indi- cording to the current understanding, court viduals with thoughts, emotions and demands. proceedings are not merely a legal-technical This requirement is the same no matter what issue, but rather a genuine interaction situa- the person’s role in the proceedings is. tion between the judge and those participat- ing in the proceedings; for most of the latter, 3.b) The second quality criterion relating to this may well be a unique experience. Trust in the present aspect is that appropriate advice is the court system will only arise if the persons provided to the participants in the proceedings, participating in the proceedings are treated in while still maintaining the impartiality and eq- an appropriate manner. Treatment has also uitability of the court. The importance of advi- an impact on how the parties commit to the sory services is on the increase in the society at result of the court’s decision. large; the courts should not be any exception For all these reasons, the treatment of the in this respect. parties and the public is a very important According to the quality criterion, for aspect of Quality Benchmarking. This as- instance, a party should be assisted in the fi l- pect has its links to the aspect relating to the ing of a case in accordance with the nature of process, but the viewpoint is somewhat differ- the matter. Of course, it ensues directly from ent. Where the aspect relating to the process the principles of judicial impartiality and stressed the encounter with the participants in independence that the court cannot provide the proceedings during an ongoing process, “attorney services or advice”. If the person is the present aspect or treatment pertains more in need of such services or advice, he or she to the stages preceding the hearing and also should be directed to get in touch with a pub- to more general customer service situations in lic legal aid attorney or a private attorney. It the court. In this aspect, the quality criteria is also an element of appropriate advice that concerning the parties are supplemented with information brochures and forms relating to criteria concerning the public and the repre- the proceedings are kept available and actively sentatives of the media. offered to the participants.

3.c) A person with business to a public agency or a private enterprise can at times be left to wander alone in the premises before fi nding the appropriate offi cial or service attendant.

38 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication In order for this not to be the case in the information on court operations by way of the courts, the third quality criterion relating to media. Accordingly, it is a quality criterion the present aspect requires that the advising that the communications and public relations of and other service of those coming to court begins the court are in order, where necessary. Success- as soon as they arrive at the venue (Courthouse ful, competent communications require that etc.) the Court has an up-to-date communications There should be clear signposts and direc- plan and the communications and PR efforts tions at the Courthouse and, if at all necessary, of the Court also proceed in accordance with also an information desk. It is very important the plan. that, in addition to the designated customer service staff, everyone in the personnel of the 3.f) The sixth, and fi nal, quality criterion re- Court is for their part responsible for such ad- lating to the treatment of the parties and the vising as can be provided without endangering public requires that the lobby arrangements at impartiality, as well as for other services. the Court are in accordance with the particular needs of various customer groups. Thus, for in- 3.d) The importance of informative case man- stance, the complainants in criminal cases, the agement to the access of the parties to infor- witnesses, and if necessary also the defendants mation on the proceedings has been discussed have been provided the opportunity to wait already in terms of the process (point 1.a). In for the hearing in their own lobby areas. For the present aspect, the fourth quality criterion the witnesses and complainants, it is impor- contains an overlapping requirement that the tant that they can wait without any danger participants in the proceedings are provided with of duress. In e.g. drugs cases, the situation is all necessary information about the proceedings. often the same also with the defendants. Thus, for instance, the participants in court proceedings are entitled to know who 4.2.4 Aspect 4: Promptness of is in charge of their case. For this reason, the proceedings the docket list posted at the door of the Courtroom indicates the names of the Court Choice of the aspect members and that of the court clerk. If neces- sary, the members of the court should also be The promptness of the proceedings means introduced to the parties in the beginning of that cases are dealt with and decided in court the hearing. as quickly as possible, without undue delays. Advances in Internet services offer new The completion of court proceedings in a possibilities for the dissemination of informa- reasonable time is a goal both of domestic leg- tion. It should already now be the case that islation and of international agreements. Ac- the website of the Court is up to date and cordingly, promptness is an important aspect contains information about court proceedings of the achievement of a fair trial. and links to such information. For the parties, the duration of the pro- ceedings is indeed a matter of signifi cance. 3.e) The fi fth quality criterion in the present Many of the cases dealt with by the courts aspect emphasises the importance of commu- pertain to the very core of a person’s life: nications and public relations in today’s media Children, family, livelihood, employment, society. Only few people have had personal home and security. Pending court proceedings contact to a court. Most people receive their – often the only such proceedings that a party

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 39 will be involved in during his or her lifetime the speed at which it can be processed: Simple – tend to occupy one’s mind and crowd out cases with limited material can be dealt with the other important elements of leading one’s more speedily than complex cases with exten- life. Not least for such reasons of humaneness, sive material. it is important that no undue delays occur in court proceedings. Choice of the quality criteria Procedural delays may cause problems also in respect of the realisation of a person’s pro- 4.a) According to the fi rst quality criterion tection under the law. A decision issued at the relating to the present aspect, cases should be end of a long-delayed process – even if other- dealt with within the optimum processing times wise of high quality – may at worst be so late established for the organisation of judicial work. that it has no real meaning to the parties any Optimum processing time, in this con- more. Moreover, knowledge of the slowness of text, means the shortest period of time dur- the courts may also prevent the fi ling of neces- ing which the proceedings can be brought to sary cases, and perhaps also attract the fi ling completion by progressing in accordance with of unnecessary ones for the express purpose of the provisions on judicial procedure. For this causing delays; the same reason may affect also reason, these outlines for optimum processing certain parties’ propensity to appeal. times take no account of the extent of the case. In addition to private individuals, the That being said, the yardstick here has been promptness of the proceedings is very im- a common case whose extent is also average. portant also to businesses and corporations. The achievement of optimum processing Pending proceedings may hamper the business times requires that, in each case, there are no activities of a company and cause uncertainty periods where nothing happens to the case. about the continuity of business relationships With regard to the processing time targets, or even the entire operations of the company. the resources of the court have a more direct From the societal point of view, the prompt- and more tangible effect than they have with ness of the proceedings will support the status regard to the achievement of other quality cri- and the fundamental task of the courts as teria. However, owing to the basic restrictions guarantors of legal tranquillity. described above, the possible inadequacy of Owing to its great signifi cance, the the resources available to the court have still promptness of proceedings is an essential not been taken into account when setting the quality requirement for court work, a self-evi- optimum processing times. dent aspect of Quality Benchmarking. That The setting of optimum processing times being said, and as will be seen in the aspects does not go beyond the detail level of fi eld of considered in these benchmarks, promptness law (civil cases, criminal cases), even though cannot be the sole determining criterion, within either fi eld of law there are several case but it must be considered in balance with types with differing promptness requirements. the other quality requirements. The speed of Nevertheless, to examine the work of the proceedings cannot be increased indefi nitely court at the detail level of case type, instead without compromising the correctness of of the general level chosen here, would make the decision and the impression that the par- the benchmarking exercise so particular that ticipants form about whether the proceedings its results would perhaps be less useful in the have been appropriate in the fi rst place. Also development of the operations of the courts. the nature of the case has a direct impact on For the same reason, there has been no need to

40 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication take separate looks at civil cases that are closed to be achieved, the action (application for a during the written preparation from those summons) will have to be registered at once that go into a hearing – nor indeed to apply when it is fi led with the court and the sum- any other more refi ned method of examining mons will have to be sent within one week of the cases stage by stage. arrival. The time limit to be set for the deliv- By virtue of these parameters, it should be ery of the response can be two to three weeks, noted that also the optimum processing times depending on the nature of the case. Once the are to be evaluated at the level of the court, response has been received, the time limit for rather than of the individual judge. The cases an eventual rejoinder to be delivered to the pending with each of the individual judges are court can be another two to three weeks. The so different by their nature that, taking all of preliminary hearing should be held within the factors with an effect on the processing two months of the conclusion of the written time into account, it will not be possible to preparation, and the main hearing should achieve the optimum times with every case, be held within two weeks of the preliminary no matter how favourable the circumstances. hearing. Finally, the issue of the judgment, This is so especially with abnormally large which closes the case for the court and thus cases, where the criteria of promptness will determines the achievement of the optimum have to be looked at on the basis of the par- processing time, should take place within two ticulars of the case, rather than any general weeks of the main hearing. considerations. That being said, it is of course In addition to civil cases and disputed possible also for an individual judge to use the petitionary cases, optimum processing times optimum processing times as a yardstick for have been defi ned also for criminal cases. Crimi- the processing times that he or she achieves nal cases have been divided into two groups: (1) with his or her own caseload. Simple cases and (2) complex (not simple) cases. First of all, optimum processing times Simple criminal cases are defi ned as have been defi ned for civil cases and disputed confessed and also otherwise not signifi cant petitionary matters, the latter as referred to , where the complainant makes no civil in chapter 8, section 4(1), of the Code of claims and where there is no need for written Judicial Procedure. Summary debt collection preparation. Typical such cases include driv- cases have not been included in the optimum ing under the infl uence. Criminal cases that processing times, owing to the basic frame- can be decided without a main hearing (in work adopted for these Quality Benchmarks. written proceedings) are also to be character- However, if a case that has been fi led as a ised as simple. The optimum processing time summary case later turns out to be disputed, in a simple case is one month. its optimum processing time will be the same In contrast, the optimum processing time as with any other civil case. In addition, the for a complex criminal case is two months. newly introduced provisions on court-an- The processing of a case in this time frame nexed (Act 663/2005, which en- requires that the inquiry about possible civil tered into force on 1 January 2006) have not claims by the complainant is complete in two been taken into account in the setting of the to three weeks. The main hearing should be optimum processing times. held within two months of the fi ling of the It has been determined that the optimum case. As the judgment in criminal cases is nor- processing time for a civil case and a disputed mally pronounced at the end of the hearing, it petitionary case is four months. For this target has not been considered necessary to reserve

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 41 time for the drafting of the judgment and its ingly, the third quality criterion relating to issue from chambers in the defi nition of the the present aspect is that also the parties feel optimum processing time for criminal cases. that the proceedings have been prompt. The This is of course the situation also with simple difference in the viewpoints of the court and criminal cases. the parties relating to whether the proceedings have been prompt or not should be adjusted 4.b) The second quality criterion relating to e.g. by explaining the stages of the process the present aspect requires that the importance forming the overall processing time and the of the case to the parties and the duration of the reasons for the same. proceedings at earlier stages have been taken into account when setting the case schedule. Tradi- 4.d) During the course of the proceedings, the tionally, the view in the courts has been that court sets procedural time limits pertaining cases are dealt with in the order they are fi led to the various stages of the process. In addi- with the court. This, however, is a view that tion, the judge may agree informally with the has for some time been somewhat removed parties that a given measure, such as the case from reality. Cases are designated to “process summary in a civil case, will be completed by a tracks” of various speeds already on the basis given date. The fourth quality criterion in this of the procedural legislation, as can be seen aspect requires that time limits that have been e.g. in the draft optimum processing times de- set or agreed are also adhered to. scribed above. In addition, the current work- Thus, for instance, requests for extensions load of the judge has a considerable effect on of time limits must be considered on their the order of cases. merits, so that an extension is not granted Taking these considerations into account, automatically, but only for a due reason. Also the achievement of the quality criterion re- in this event, the extension should not be quires that even though fi rst-in-fi rst-out is longer than a few weeks. The achievement of the rule of thumb, the scheduling of certain the criterion requires further that the statutory types of case takes account of the especially provisions on urgent hearings are observed. great importance of the case to the parties. Such fast-trackable case types are e.g. “mould 4.2.5 Aspect 5: Competence and house” cases, child custody cases, employment skills of the judges cases and the debt adjustment of private indi- viduals. In addition, the justifi ed requests by Choice of the aspect parties for fast-tracking should be taken into account. Moreover, the criterion can only be The judges and the other court personnel fulfi lled if the prolongation of the process – defi ne by their own activities the standard of meaning here not only the proceedings in the their work and thereby also the entirety of the court just now pending, but also the preceding court’s operations. As a matter of fact, quality stages of casework – is taken into account as in adjudication is largely determined by the a reason for speeding up the consideration of competence and skills of the judges and the the case. supporting staff. Even if the resources of the court were 4.c) Even if the proceedings have been prompt objectively adequate, the attorneys performed from the viewpoint of the court, the parties their duties without reproach and the provi- may have a different experience. Accord- sions on judicial procedure were fl awless,

42 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication quality in adjudication might still remain Choice of quality criteria unachieved if the competence and skills of the judge leave something to be desired. There are any number of requirements that Conversely, a competent and skilful judge could be imposed on the competence and may act in a manner that remedies some of skills of the judge. For instance, a judge must the shortcomings encountered in the other be upright, independent, knowledgeable of areas. Hence, a competent and skilful judge the law, judicious, adept with the use of legal is the ultimate guarantor of the protection of sources, discerning, good at interaction and the parties under the law. Moreover, when the communication, co-operative, linguistically judges act competently and skilfully, also the gifted and culturally aware. general trust of the society towards the courts It would of course be possible to assign tends to increase. these direct competence and skill require- The requirements put to the competence ments also as quality criteria. However, in the and skills of judges are now higher than they design of the present Quality Benchmarks, used to be in the past. This is partially the re- it has been deemed that such an approach sult of changes in the operating environment would not be advisable, for a number of rea- of the courts e.g. through legislative progress sons. The number of individual requirements (fundamental rights, human rights, broad – albeit legitimate in themselves – is so large and open , etc.) and partially the that reliable benchmarking would be diffi cult result of increasing and varying expectations already for this reason. Moreover, the practi- towards the courts. When the general educa- cal arrangement of this kind of benchmarking tion standard of the population increases and would be a very complicated operation. For the welfare society expands, individuals expect these reasons, the quality criteria relating to more and better from the courts, as they do the competence and skills of the judge are not also from other social institutions and private comprised of the individual characteristics of a service providers. For all these reasons, it will good judge, but rather of such indirect factors not suffi ce that the judges are content with that are deemed to have a direct bearing on their current level of competence and skills; the improvement of judicial competence and instead, they and their superiors will have to skills. In addition, the aim of one of the qual- be constantly looking for new methods and ity criteria is to determine the impression that solutions for the improvement and develop- the persons participating in the proceedings ment of their competence and skills. have of the competence and skills of the judge, With a view to the above considerations, based on his or her conduct in Court. it is essential that the competence and skills of the judge form an aspect of Quality Bench- 5.a) Owing to the rapid changes in legislation, marking. By ensuring that the competence it will soon become impossible to discharge and skills of the judges are maintained and de- the duties of a judge unless he or she keeps veloped, we can have a direct infl uence on the up to date with the latest developments. Ac- level of quality in adjudication in the courts. cordingly, the fi rst quality criterion relating to the present aspect of Quality Benchmarking makes the judges themselves expressly respon- sible for the same, requiring that they take care of the maintenance of their skills and compe- tence. To this end, the judges must e.g. peruse

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 43 new legislation and preparatory works, follow At the same time, the duties of the courts the latest case-law, and keep up to date with have become more varied and their proper the most signifi cant new legal literature. discharge requires the possession of extensive special knowledge. In view of these consid- 5.b) In addition to self-paced individual erations, it is reasonable that also the judges study, it is important for the development and specialise. intensifi cation of competence and professional Accordingly, the fourth quality criterion skills that the judges attend continued training relating to the present aspect is that the court sessions as referred to in the second qual- has specialised judges. In the general courts, the ity criterion. As a matter of fact, various and natural fi rst-degree specialisation is that relat- comprehensive continued training is currently ing to fi eld of law, that is, either civil cases or on offer to judges on a number of topics and criminal cases. In addition, the achievement organised by a number of providers. of the quality criterion requires also more re- The achievement of the quality criterion fi ned specialisation in the Court, if necessary requires that the judges participate actively in in view of the nature of the cases and if its size the training sessions organised by the individ- allows for the same. It is of course a given that ual courts or in the context of quality projects, it is more diffi cult to arrange for specialisation as well as in the continued training sessions in a small court. for members of the judiciary organised by the central administration of the courts or some 5.e) The achievement of the fi fth quality other body responsible for judicial training. criterion is important for the credibility of The optimum training volume for each judge the judge and the trust that the society puts has been defi ned as 8 to 10 days of continued in the courts. Namely, the parties and the at- training every year. torneys should get the impression that the judge has prepared for the case with care and under- 5.c) In order to ensure the effectiveness of the stands it well. For instance, the parties and the continued training undergone by the judges, attorneys are entitled to expect that the judge the training should be properly planned and is well informed of the factual basis of the case based on the individual competence and skill and that the judge understands the point of maintenance and development needs of the the case. judges. Accordingly, the third quality criterion Important elements in the formation of relating to the present aspect is that the judges’ the impression of the judge is the case man- participation in training is subject to agreement agement of the judge, which should be clear in the annual personal development talks. The and determined. Also, the judge should act training needs and the agreement reached on with confi dence, not timidity, in the pro- the judge’s participation in training should ceedings. During the proceedings, the judge be listed in the court’s training plan for each should be capable of interaction not only with judge separately. professionals in the administration of justice, but also with laypersons. The judge should 5.d) The prosecution service is already pro- be able to describe the case and discuss it in ceeding in the direction of prosecutorial “everyman’s terms”. specialisation in given types. More and more often, also attorneys tend to specialise 5.f) For the development of the competence into more precise fi elds of legal expertise. and skills of the judges, it is very important

44 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication that they can have discussions on professional case. That being said, those with supervisory issues with other judges and also with prosecu- authority in a court are still responsible for the tors and attorneys. Such discussions open up organisation and management of the adjudi- the possibility of learning from one’s peers; in cation so that it serves the achievement of the addition, they are conducive to the uniform- court’s objectives. ity of court practice both in substantive and in Successful organisation and management procedural matters. of adjudication and of other court functions Towards these goals, the sixth and fi nal lay the groundwork for the decision of the quality criterion relating to the present as- cases with regard to the protection of the par- pect is that the judges participate regularly ties under the law. In view of the expediency and actively in judges’ meetings, in quality of process and the accrual of costs, manage- improvement conferences and also in other work ment is very important to the parties and the of the Quality Working Groups. Naturally, this society alike. A well managed court gives both requires that judges’ meetings are in fact regu- the parties and the society at large an experi- larly held at the Court and that the matters to ence of trustworthiness and of a high standard be discussed in the meetings have been pre- of adjudication. pared as the nature of the matter warrants. Because organisation and management have a very signifi cant effect on the successful- 4.2.6 Aspect 6: Organisation and ness of the court’s adjudication, it is justifi ed management of adjudication to include them as an aspect of Quality Bench- marking. Owing to the basic framework of the Choice of the aspect benchmarks, also organisation and manage- ment are examined from the viewpoints that As is the case in any organisation, the manage- have a bearing to adjudication. Hence, the ment of a court consists of a number of func- quality criteria under this aspect are not even tions: Planning, resource allocation, personnel intended to cover all of the organisational and motivation, development of functions, direc- management issues arising in a court. tion, control and supervision, maintenance of personnel competence and the safeguarding of Choice of quality criteria the capacity of the personnel to perform. More and more is being required of court manage- 6.a) As the demands on the organisation and ment under the current circumstances of rapid management of adjudication are increasing in change in the operating environment and of the ways described above, the fi rst quality increases of the expectations that the society criterion relating to this aspect is that they are and the personnel put in the courts. Like all taken care of with professionalism and that they of the court’s operations, also its management support the discharge of the judicial duties of the must be of high quality and effi ciency. court. Professionalism, in this context, means The organisation and management of ad- e.g. that the court is managed with a view to judication is a very challenging sector of court its objectives and that operating principles management owing to the independence of have been adopted for the court. the judges. Organisation and management The management of the court should measures should not overstep the limits of strike a balance between the viewpoint of the judge’s independence and impartiality the participants of the proceedings, especially with respect to the decision in an individual the parties, and the internal viewpoint of the

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 45 court. The latter requirement means that the of the court may make it diffi cult, even impos- chief of the court manages it in interaction sible, to use reinforced compositions. with the judges and other personnel. To prevent this from happening, the fourth quality criterion relating to the present 6.b) It is an important issue in view of the aspect requires that adjudication has been or- independence and impartiality of the courts ganised so that the use of reinforced compositions that the assignment of cases to individual is de facto possible. It should be possible to use judges is appropriately organised. Hence, the reinforced compositions whenever the case is second quality criterion relating to the present extensive or complicated in terms of evidence, aspect is that the assignment of new cases to the the law or otherwise, notwithstanding the judges is methodical and carried out in a credible general workload of the court or issues relat- manner. ing to the resources of the court. Incoming cases should be assigned to the judges by lot or by some other method ensur- 6.e) It has been noted above that professional- ing the appropriateness of the distribution. ism in management involves also interaction The assignment criteria should be pre-defi ned. with the personnel of the court. This, of The person doing the assignment should have course, applies also to the interaction between no personal stake in the outcome, nor any in- the judges and their superiors. However, usual fl uence on the same. conversation during coffee breaks and other informal contexts does not meet the criterion 6.c) It was noted above, in the section pertain- of professionalism. Instead, a methodical ap- ing to the aspect of competence and profes- proach to the talks should be adopted. For this sional skill (point 5.d) that the court should reason, the fi fth quality criterion relating to have specialised judges. the present aspect is that personal development It is a parallel requirement for the organi- talks are held with every judge every year. sation and management of adjudication that Personal development talks mean method- the specialised competence of the judges is also ical conversations, planned for in advance, on utilised in the processing of cases. There are the development aspirations and requirements many judges who have obtained above-aver- of the judge. A form, containing the topics to age knowledge in a given sector of the law e.g. be covered, should be used in order to lend by self-paced study or postgraduate study. For structure to the talks and to make it easier the parties, it is important that the specialised to prepare for them. For instance, the agree- competence of judges be taken into account ments reached in the talks on the training when they are assigned into specifi c duties and programme of a judge (point 5.c) should be when the bases for the assignment of cases are put on record as a part of the personal devel- being defi ned. opment talks.

6.d) The procedural legislation makes it pos- 6.f) The whole of the fourth aspect of the sible, and indeed necessary, to use court com- Quality Benchmarks concerns the promptness positions larger than one judge, if the nature of the proceedings. Measures are needed also of the case so warrants. The reinforcement of on the part of the court management in order the composition is primarily a means for aim- to ensure that cases are processed in a timely ing for the greater correctness of the decision. manner. The sixth quality criterion relating to However, the internal working arrangements the present aspect concerns precisely this point.

46 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication Accordingly, the court should have a methodical 6.h) The effi ciency of adjudication in the long system for the active monitoring of case progress run requires that the management of the court and for taking measures to speed up delayed cases. takes due note of the well-being of the person- Especially the progress of cases of long- nel. For this reason, the fi nal quality criterion duration should be monitored (e.g. cases older relating to the present aspect emphasises the than a year). In order to achieve the quality responsibility of the management of the court for criterion, the court should have prearranged the judges and other staff not being overloaded mechanisms for intervening in possible undue with work. delays with individual judges, arising e.g. from With the increasing demands on the an excessive workload. courts, the issue of well-being has become more and more important as a management 6.g) The seventh quality criterion relating to consideration. In order to achieve the quality the present aspect is that the security of the criterion, superiors at the court must see to it participants in the proceedings and of the that the members of the staff do not overwork, court personnel is guaranteed. Security issues but maintain a work/life balance. It is impor- have become more and more prominent in the tant in terms of burnout avoidance that the courts over recent years. individual judges or other staff members bear The achievement of the quality criterion no personal responsibility for caseload conges- can be ensured by drawing up for the court tion arising from the inadequacy of resources, a security plan, containing a risk assessment but that this responsibility is assumed by the and covering the security-enhancing measures chief of the court personally. in use. The security plan should be kept con- stantly up to date.

4.3 Point scale for analysis

In the main, the quality criteria are analysed sessments based on the level of achievement of by means of a six-point scale and a corre- the criterion in question are as follows: sponding verbal assessment. The verbal assess- 0 points The criterion is not met at all (fail) ment is an approximation of the achievement 1 The criterion is met partially (pass) of the quality criterion. In order to refi ne this 2 The criterion is met satisfactorily assessment and to improve the usefulness of (satisfactory) the benchmarking results in the development 3 The criterion is met well (good) of adjudication, it is necessary to use also nu- 4 The criterion is met laudably merical point values to the achievement of the (laudable) criteria. 5 The criterion is met in an The characteristics of the quality criterion exemplary manner (exemplary) can be used in the awarding of the points and One of the quality criteria relating to the the verbal assessment of the achievement of a promptness of the proceedings, namely “The given quality criterion. Hence, the character- case has been dealt with within the optimum istics themselves are not set to any scale at all. processing times established for the organisa- The point scale for analysis and the verbal as- tion of judicial work” (point 4.a), is set to

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 47 a different scale. On that scale, the points The criterion is not met at all (0 points; fail) awarded for achieving the criterion are based on the mean length of proceedings in the rel- This is a failing result, which means that the evant case type in the court in question. quality criterion, as described, is not achieved The point total of the Quality Benchmark- practically at all. This may ensue e.g. from ing exercise is the sum of the points awarded the importance of the matter not having been for the achievement of each quality criterion. understood for some reason or another, or Because the criterion relating to optimum from an attempt to meet the criterion which processing times can yield 15 points, the max- nonetheless has failed. For instance, the court imum point total of the Quality Benchmarks cannot expend the resources to have a bailiff is 210 points. on duty for the duration of court days, even It is a basic premise of the Benchmarks though this would in most situations be an es- that, with the exception of the processing sential prerequisite for the appropriate provi- times criterion, it is possible to receive the sion of information and advice to customers. same number of points from each quality criterion. The criteria, or the aspects, have not The criterion is met partially (1 point; pass) been weighted in relation to one another, be- cause this would have necessitated the setting The quality criterion, as described, is achieved of the criteria into an order of priority. This for a restricted part. For instance, some of the has been considered an unnecessary exercise, characteristics of the criterion are met, but at least before any experience from the pilot most of them are not met at all. Accordingly, project is on hand. This issue will be revisited there still are quite considerable defects in the once the usability of, and the reliability of the achievement of the quality criterion. information from, the Benchmarks have been tested in practice. The criterion is met satisfactorily The point total for the quality criteria and (2 points; satisfactory) any changes therein have an indicative value only. The total points for an individual court The quality criterion, as described, is achieved are thus a snapshot of its development at a to a considerable degree. About one half, or at given point in time. However, the total points least almost one half, of the conceivable char- are less important than the points awarded for acteristics of the criterion are met quite well. a single quality criterion or an aspect, because That being said, it is possible to be awarded 2 the Benchmarks have been designed primarily points even if there still are signifi cant defects as a development tool and as an impetus for in a restricted part of the criterion. At this discussion on this topic. In addition, the to- level, the operations of the judge and the court tal points of one court are not intended to are already quite satisfactory. be compared to those of another court. Any comparisons will require the more detailed analysis of the benchmarking results. The following paragraphs describe the required level of achievement in the relevant quality criterion, in order to receive a given number of points.

48 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication The criterion is met well (3 points; good) The criterion is met in an exemplary manner (5 points; exemplary) The quality criterion, as described, is achieved well and extensively, even though there still To be awarded the maximum, 5 points, the may be minor defi ciencies in some individual quality criterion must be achieved in an ex- characteristics of the criterion. This is the level ceptionally impressive and exemplary manner. that should be the goal for all judges and all This result can be attained, but it is not envis- courts; it is also attainable in practice. aged that it will in fact be attained very often. The achievement of the quality criterion in an The criterion is met laudably exemplary manner means e.g. that the court (4 points; laudable) is a top performer also in an international comparison. It is also an active developer of To be awarded 4 points, the conceivable judicial culture, by serving as a model for the characteristics of the quality criterion must aspirations of other courts and judges. The be achieved in a laudable manner. In practice, activity covered by the quality criterion in there should be no scope for criticism as to the question is also under constant development achievement of the criterion at all. A laudable with a range of innovative approaches. performance will also serve as a model for oth- ers; it is evidence of a real effort having been made to develop the activity covered by the quality criterion in question.

4.4 Choice of the method of evaluation

There are fi ve categories of evaluation method of the quality criterion in question. In con- referred to in the Quality Benchmarks: (1) trast, however, they do not necessarily cover self-evaluation, (2) surveys, (3) evaluation by the criterion very broadly, and will therefore a group of expert evaluators, (4) statistics, and not serve as a basis for the planning of the (5) statement by the court itself. necessary development measures, or indeed Taking due note of the nature of the work the conceiving of such measures. of the courts, it will be necessary to employ a The advantage of subjective evaluation number of these methods in order to gain a methods is that they cover the quality crite- realistic and comprehensive view of the qual- rion in question quite broadly. In contrast, ity of the operations of the court. The choice however, the data obtained by these methods of quality criteria in the benchmarks tends to may be quite imprecise, or even false. the same direction, as the practicalities of the Self-evaluation means, in effect, that the evaluation of the achievement of the individu- judges themselves assess their own operations al criteria will no doubt be very variable. and those of their court in the light of the The methods of evaluation will yield either quality criteria in question. Self-evaluation is objective data or more or less subjective data. one of the most important methods proposed The primary advantage of objective evaluation in these Quality Benchmarks. The data that methods is that they provide a precise picture can be obtained by this method is of course

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 49 largely subjective; however, when taken as a professor (legal scholar), and a communica- whole, the data will serve as a good and in- tions and PR professional. With respect to yet formed basis for the further evaluation of the another group of quality criteria, the expert quality criterion. group will be more restricted than that, being The other important evaluation method composed solely of a judge, an attorney and a is the survey, which comes in a number of prosecutor. The evaluation result produced by varieties: There are the extensive survey, the the expert group will be subjective, but in view restricted survey, and designated surveys of of the balanced composition of the group, it is Lay Judges, the courts, court personnel, and still likely that their result will be a close ap- representatives of the media. The addressees proximation to the true standard of quality at of the extensive survey are the attorneys, the court. prosecutors, and parties. In cases where an There are many quality criteria where the extensive survey is not needed, owing to the preferred evaluation method is the use of sta- nature of the quality criterion, the survey will tistics. Statistics are a form of objective data on be restricted, that is, the parties will be exclud- the achievement of the criterion. For all that, ed from the addressee group. Also the survey they also require interpretation and cross- yields mainly subjective data. Especially the referencing with other data before meaning- information received from a party may be ful conclusions can be drawn. Many of the coloured to a great extent by the outcome of necessary data series can be compiled directly the case, that is, whether the party has won or from existing statistical systems, but there are lost in his case. others which will require the initiation of data With respect to certain quality criteria, the collection. most useful evaluation method will be the use The fi fth method of evaluation is the state- of a designated group of experts to perform the ment obtained from the court itself, which evaluation. The expert group is composed of a will serve as the basis of the assessment of the judge, an attorney, a prosecutor, a University points for the criterion in question.

50 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 4.5 Pilot project for the Quality Benchmarks

The implementation of the Quality Bench- Most of the measurements required in the marks will proceed by way of a pilot project. Quality Benchmarks will be carried out with The pilot project will also yield useful infor- an Internet-based application, Webropol. In mation for the further development of the practice, everyone responding to a quality sur- benchmarks. It is only through the practical vey will be able to do so at her own worksta- experiences gained during the pilot stage that tion. The software will compile the results and the fi nal form of these Quality Benchmarks yield various summaries and reports. Data col- can be settled and ratifi ed. lection will thus be relatively easy and it will It was decided in the Quality Conference not give rise to noteworthy additional work or of 2005 that the pilot project would be im- administration. plemented in the autumn of 2006. All courts As regards statistical information, the pilot in the jurisdiction of the Court of Appeal stage will confi ne itself to the already available of Rovaniemi will participate. The practical information. Apart from the quality criterion implementation of the pilot project will be a on processing times, the statistical informa- task for the Quality Co-ordinator, assisted by tion will be used during the pilot stage with- a contact person in each of the courts of the out it being subjected to qualitative analysis. appellate jurisdiction. The material will serve in the future as a basis for the defi nition of a scale for the qualitative analysis of the statistics.

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Quality Benchmarks for adjudication 51 1 2 3 4

Bilaga 1. Description of the Quality Project Bilaga 2. Quality Benchmarks (Table) ANNEXES Quality Project of the Courts in the Jurisdiction of the Court of Appeal of Rovaniemi Annex 1

The Quality Project was launched in 1999. legal aid attorneys and prosecutors, and lately All courts within the appellate jurisdiction of also offi cers serving as heads of the pre- the Court of Appeal of Rovaniemi participate trial investigation of criminal offences. The – at present, this means nine District Courts Quality Project itself covers both civil cases and the Court of Appeal itself – as do many and criminal cases. stakeholders, such as private attorneys, public

According to the Constitution of Finland, the courts are divided up into the general courts, the administrative courts and the special courts. The general courts consist of the Supreme Court, the Courts of Appeal (6) and the District Courts (at present, 59). The administrative courts consist of the Supreme Administrative Court and the regional Administrative Courts (8). The three special courts are the Market Court, the Labour Court and the (social) Court.

The general courts have jurisdiction over all criminal cases and civil disputes, and more gener- ally over all legal disputes that have not been expressly rendered subject to the jurisdiction of some other court. The administrative courts are mainly involved in the resolution of disputes arising from the relationships of the public authorities and private entities. Each of the special courts has clearly delimited jurisdiction over specifi c cases or case types.

The jurisdiction of the Court of Appeal of Rovaniemi is the Northernmost of the six appellate jurisdictions in Finland.

The objective of the Quality Project is to and one head of the pre-trial investigation of develop the functioning of the courts further criminal offences. A Co-ordinator for Qual- and further, so that the proceedings meet the ity, selected from among the District Judges criteria of a fair trial, that the decisions are well for one year at a time, is tasked to support the reasoned and justifi ed, and that the services of Working Groups for Quality, to implement the courts are affordable to the individual cus- the training, to maintain contacts with the tomers. The main working method consists of various stakeholders, and to edit the Report systematic discussions among the judges and on Quality, as described below. also between the judges and the stakeholders, Normally, four Working Groups for Qual- for the purpose of improving the quality of ity are set up for each year; the membership adjudication. consists of judges from each of the District The development work is steered by the Courts in the appellate jurisdiction, members Development Committee of the Quality of the Court of Appeal, and referendaries of Project; the term of the members of the Com- the Court of Appeal. Also prosecutors, private mittee is three years. At present, the Devel- attorneys, public legal aid attorneys, and heads opment Committee is chaired by the Chief of pre-trial investigation may serve as members Judge of the largest District Court in the ap- in the Working Groups for Quality. The lead- pellate jurisdiction; the membership consists ing principle is that every judge participates in of the President of the Court of Appeal, three the work of the Working Groups. District Judges, two attorneys, one prosecutor

54 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes The selection of the development themes 2000 is based on the magnitude of the problem 1) penal practice in drugs offences of adjudication that is being addressed, its 2) management of evidence topicality, and its tangibility. The selection 3) follow-up of the proposals concerning the of the themes is fi nalised during the Quality problems arising in the preparation of civil Conference, which takes place every autumn, cases and the harmonisation of penalties in attended by the judges in the appellate ju- drunk driving offences risdiction, referendaries, trainee judges and 4) follow-up of the harmonisation of penal- stakeholder representatives. When the themes ties in larceny offences and violent offences are being selected and the objectives set, due care is taken not to compromise the independ- 2001 ence of the courts or the judiciary. 1) follow-up of the 2001 quality objective of Normally, each Working Group for Qual- decreasing the problems arising in the man- ity is tasked to deal with one of the themes. agement of evidence The Working Groups map out the problems 2) follow-up of the 2001 quality objective of relevant to the theme, look into the practices harmonisation of penal practice in drugs of- adopted in the different District Courts, defi ne fences a procedure that can be mutually accepted, 3) substantive case management by the judge and make a proposal for the harmonisation in criminal cases (especially the right and the of the court practices. Follow-up measures duty of the judge to clarify the case by asking are designed already when the objectives are questions) being set. 4) case management in extensive civil cases; The reports of the Working Groups are with a view to the minimisation of processing presented at the Quality Conference, they are times and to dynamic proceedings discussed, and quality objectives, based on the reports, are set for the following year. The Re- 2002 port on Quality, containing the fi nal reports, 1) follow-up of the 2002 quality objective of is distributed every year, free of charge, to the substantive case management by the judge in participants of the Quality Project, to all of criminal cases the courts in Finland, and to the various stake- 2) follow-up of the 2002 quality objective of holders. It is also published on the judicial case management in extensive civil cases intranet and on the Internet (www.oikeus.fi / 3) case management in debt adjustment cases; 27723.htm). with a view to the minimisation of processing times and to dynamic proceedings The quality themes of the past years have been: 4) substantive case management by the judge in civil cases (especially the right and the duty 1999 of the judge to clarify the case by asking ques- 1) penalty harmonisation in larceny offences tions) 2) penalty harminisation in drunk driving of- fences 3) penalty harmonisation in violent offences 4) problems arising in the preparation of civil cases

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 55 2003 2006 1) drafting of reasons for the court’s fi ndings 1. procedure and evidence in a case relating on evidence in civil and criminal cases to the detention of a crime suspect and the 2) harmonisation of court practice relating to imposition of a travel ban the selection of penalty type 2. conduct of the judge in court as an ele- 3) harmonisation of court practice relating to ment of procedural justice (follow-up of the the enforcement of suspended sentences 2005 quality objective) 4) preparation of a model application for a 3. preparation of a civil case by the parties summons (action) and a model response in (follow-up of the 2005 quality objective and a civil case on the basis of a supplied factual further development of the theme by the situation compilation of a checklist of measures to be completed during the preparation by the par- 2004 ties) 1) case management in debt adjustment 4. penal practice relating to violent offences cases and substantive case management by (re-evaluation and update of the reports the judge in civil cases (follow-up of the 2003 3/1999 and 4/2000) quality objectives) 2) conduct of the judge in court as an ele- The Quality Project is supplemented by ment of procedural justice training, offered for 6–8 days per year. In ad- 3) preparation of a civil case by the parties dition to the quality themes of the year, the 4) application of chapter 7, section 6, of the training has every year covered a selected fi eld Penal Code of substantive law, e.g. the general principles of , or . 2005 The Quality Project has been recognised 1) drafting of reasons for the court’s fi ndings both by the Finnish and the international legal on evidence in civil and criminal cases and community. In 2005, the Finnish Associ- improvement of the substantive quality of the ation awarded the Quality Project its prize for applications for summonses and the responses Legal of the Year, in the form of Defen- in civil cases (follow-up of the 2004 quality sor Legis, a bronze by sculptor Veikko Myller, objectives) and an award certifi cate. Also in 2005, the 2) harmonisation of court practice relating Quality Project won the Council of Europe to the selection of penalty type and to the en- and the European Commission’s competition forcement of suspended sentences (follow-up The Crystal Scales of Justice. A total of 22 of the 2004 quality objectives) projects from 15 countries participated in this 3) case management in criminal cases contest. The Quality Project was awarded the 4) judges’ co-operation in the case manage- eponymous crystal sculpture and a diploma. ment of civil cases and the use of the three- judge composition in civil cases

56 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW QUALITY BENCHMARKS FOR ADJUDICATION Annex 2

Aspect Quality Description Point scale Evaluation methods criterion

1) 1.a) • the proceedings have been predictable for the parties THE PROCESS the proceedings • the parties have been constantly informed of the current stage of the have been open proceedings and of what will happen next and transparent • the presiding judge has practiced informative case management so vis-à-vis the as to advise the parties and the other participants of the course of the parties proceedings • the parties have been allowed to make their case and to present their grounds and evidence • the parties have been allowed to comment on their opponents’ claims, grounds and evidence • the parties have been allowed to comment also on the information procured by the court ex offi cio

1.b) • the judge has decided the case solely on the material presented in the judge has courts and solely on the basis of the legislation in force and of other ac- acted inde- cepted sources of law pendently and • even though the judge has practiced effective and active case manage- impartially ment (see 1.e), trust in the independence and impartiality of the court has not been compromised • the judge has treated the parties equitably • the judge has not been swayed by media pressure, the public opinion or any other outside infl uence

1.c) • the nature and the extent of the case have been taken into account in the proceed- the organisation of the case ings have been • if necessary, the presiding judge has promoted the effective preparation organised in of a civil case by the parties an expedient • the hearing schedule has been agreed on with the parties/attorneys manner • if the court has several courtrooms or courthouses, the choice of venue has been based on the required technical equipment and the accessibil- ity of the venue to the parties. Branch courthouses are used not only in criminal cases, but also in civil cases if this is notably advantageous to the parties • the parties have not been required to appear in person, unless their presence has been necessary to further the inquiry or to promote a set- tlement • before the cancellation of a main hearing in a civil or a criminal case, the possibility to hold a hearing on a part of the case has been carefully looked into, so that only the remainder need be taken up at a later hearing • the composition of the court follows the nature of the case. All simple or easy cases are transferred from judges to junior judges, trainee judges and clerical staff (delegated powers are used at a maximum). In contrast, reinforced compositions are used whenever the nature of the case so requires; reinforced compositions have not been avoided owing to the resource constraints of the court

58 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes QUALITY BENCHMARKS FOR ADJUDICATION Annex 2

Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • survey of attorneys, prosecutors and parties (“extensive survey”) Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • statistics on pleas of disqualifi cation None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • statistics on hearing cancellations (separate for advance cancellations and Satisfactory = 2 pts cancellations in the hearing) Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 59 Aspect Quality Description Point scale Evaluation methods criterion

1) 1.d) • the judge has kept the possibility of settlement a live topic throughout THE PROCESS active, but the written preparation, preparatory hearing and main hearing (cont’d) non-coercive, • the judge has thoroughly explained to the parties the benefi ts and measures have advantages of settlement vis-à-vis a judgment, been taken to • the judge has refrained from coercion or compulsion of the parties encourage the towards a settlement parties to settle • in the interests of settlement, various resolution techniques have been (civil cases and applied if so warranted by the nature of the case (discussion with all par- the civil liability ties and attorneys together, discussion with the attorneys only, discus- issues in crimi- sion with one party only without the other party present etc.) nal cases) • mediation has been offered equitably and impartially • the need and the possibility of transferring the case to court-annexed mediation (Act 663/2005) have been looked into

1.e) • the presiding judge has seen to it that the proceedings are structured the process has and scheduled as a coherent whole been managed • procedural deadlines set by the court have not been extended as a mat- effectively and ter of course, without due reason actively (both • in civil cases, the summary of the written preparation has been sent to procedurally and the parties well in advance of the preparatory hearing substantively) • in the preparation of the case and, in criminal cases, no later than in the presentation of the case, the disputed and undisputed facts have been clearly demarcated and the course of the events described in so far as relevant • the presiding judge has actively put the necessary questions so as to ensure that the case is dealt with thoroughly • the presiding judge has exercised case management so as to rectify obvious mistakes by the parties • the presiding judge has seen to it that material not germane to the case is not included in it • procedural coercive measures have been utilised to the extent war- ranted by effective progress of the case

1.f) • in a civil case, the plaintiff’s application for a summons and the defend- the proceedings ant’s response are clearly structured have been • the written preparation of a civil case has not been unduly prolonged; arranged and in the main, a preparatory hearing has been called after the response, carried out so without requesting an additional comment from the plaintiff that a minimum • the case has been prepared and is ready for the main hearing after a of expenses is single preparatory hearing incurred by the • whenever possible, the case has been transferred from written prepara- parties and tion directly to a main hearing, without a preparatory hearing others involved • the case has been decided solely on the basis of the written preparation in the proceed- whenever possible ings • only the necessary evidence has been accepted and the evidence has been taken in in a concentrated manner. “Excess evidence” has been avoided by rejecting clearly unnecessary evidence

60 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • statistics on settlements and the stages of proceedings where settlement Partial = 1 pt is reached Satisfactory = 2 pts • extensive survey Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey excluding the parties Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey, excluding the parties Partial = 1 pt • statistics of comment requests and numbers of hearings per case Satisfactory = 2 pts • statistics of preparatory hearings by telephone, persons heard in court by Good = 3 pts telephone and videoconferences Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 61 Aspect Quality Description Point scale Evaluation methods criterion

1) 1.f) • modern technology (e-mail, telephone, video etc.) has been used and THE PROCESS the proceedings utilised during the proceedings to the maximum allowed by the law, so (cont’d) have been as to avoid unnecessary costs arranged and • the comments of the client, and not only of the attorney, have been pro- carried out so cured on the reasonableness of the claim for legal costs of the opposing that a minimum party, in so far as feasible of expenses is • in order to reduce the “cost risk”, the rules of “reasonable cost adjust- incurred by the ment” have been applied in so far as possible (Code of Judicial Proce- parties and dure, chapter 21, sections 8a and 8b) others involved in the proceed- ings (cont’d)

1.g) • the scheduling of the proceedings takes note of the justifi ed require- the proceedings ments of the parties and the attorneys (dates/times) have been • the practicalities of the proceedings have been discussed with the par- organised in a ties and their attorneys fl exible manner • technical means have been utilised to the fullest extent (see 1.f above) (for instance, it can be arranged with a witness that he or she is called to the court by telephone when his or her turn to testify comes up) • the clients have been given the chance to leave the court as soon as their presence is no longer necessary • urgent matters take precedence over other matters (see 4.b below)

1.h) • the issue of open/closed hearing has been dealt with in open court the proceedings • when decisions restricting the openness of the proceedings are made, have been as the restrictions concern only those parts of the proceedings where a open to the closed hearing is strictly necessary public as • when orders on the secrecy of the trial materials or the decision are possible made, overly extensive orders are avoided and secrecy is restricted to what is strictly necessary • public summaries of secret decisions are produced, indicating the main thrust of the case and the reasons for the decision • even though openness is ensured in the proceedings, it has also been guaranteed that personal privacy is not thereby violated nor the smooth- ness of the proceedings compromised

1.i) • the participants in the proceedings feel that they have been allowed the proceed- freely to make their case ings have been • the participants have been treated so that they feel that they have been interactive heard (e.g. eye contact, clarifying questions etc.) and understood • in addition to formal hearing, it has also be ensured that the participants feel that they have been genuinely heard

62 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

• statistics of decisions made solely on the basis of the written preparation • statistics of cases decided after a main hearing without an intervening preparatory hearing • statistics of legal costs

Achievement • self-evaluation by the judges None = 0 pts • extensive survey excluding the parties Partial = 1 pt • statistics on the use of technical means (see 1.f) Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • survey of the media Partial = 1 pt • extensive survey excluding the parties Satisfactory = 2 pts • statistics on decisions restricting the openness of the proceedings Good = 3 pts • statistics on public summaries Laudable = 4 pts Exemplary = 5 pts

Achievement • extensive survey None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 63 Aspect Quality Description Point scale Evaluation methods criterion

2) 2.a) • it is clear on the face of the decision that it is in accordance with the law THE DECISION The decisions in force and that it is based only on the material presented in court are just and • in addition to legislation, the prevailing case-law and other accepted lawful sources of law (preparatory works, literature, “real arguments” etc.) have been taken into account in the decision, as have the characteristics of the case at hand • the recommendations of the Quality Project relating to penalty practice and procedure have been taken note of in the decision, as points of comparison for the judge’s own practices and usages

2.b) • the parties and the legal professionals have experienced the decisions The reasons for to be both just and lawful the decisions have convinced the parties, legal profes- sionals and legal scholars of the justness and lawfulness of the decision

2.c) • the reasons indicate transparently the grounds on which the decision The reasons of is based the decisions are • if there have been more than one seriously considered alternative, transparent all of these have been covered in the reasons • the reasons comment also on arguments against the eventual outcome, as well as indicate why the arguments for the outcome have prevailed in the case at hand (pro & contra) • the reasons describe or at least list the sources of law referred to (see 2.a above). Positions taken in legal literature, however, have been described only where the decision of the case has required scholarly argumentation.

2.d) • the reasons have been drafted in a problem-oriented manner (the The reasons reasons indicate which relevant issues are at dispute and which are of the decision not. Only the directly pertinent evidence is discussed in relation to each are detailed and disputed issue) systematic • positions have been taken on all evidence that has been accepted and on all issues at dispute • different legal issues have been settled separately and in a sensible order

64 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • statistics on appeal rates (number of appeals over number of decisions open Partial = 1 pt to appeal) Satisfactory = 2 pts • statistics of overturn rates Good = 3 pts • statistics of complaints fi led with the overseers of legality Laudable = 4 pts Exemplary = 5 pts

Achievement • extensive survey None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • expert group evaluation (expert group comprising a judge, an attorney, Satisfactory = 2 pts a prosecutor, a law professor and a PR and communications professional) Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • expert group evaluation (for the composition of the expert group, see 2.c) Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 65 Aspect Quality Description Point scale Evaluation methods criterion

2) 2.e) • plain language is used in the decision, so that also an outside reader THE DECISION The reasons of can easily understand the main thrust of the decision (cont’d) the decision can • general language is used, legal terms have been avoided or their be understood meaning is explained • the clarity of the decision has been improved by the use of headings and a consistent structure

2.f) • the structure of the decision makes clear distinctions between the The decision background of the case, evidence, reasons, and outcome has a clear • the decision is adequately concise structure and is • the decision contains no linguistic or typographical errors and it is also linguistically and otherwise well written typographically • the layout of the decision is considered correct

2.g) • instead of reading out the text in a monotone, the decision is given in The pronounce- spoken word ment of the • it is ensured by questions that the parties understand the decision decision has • the parties have been given the chance to ask questions, if they do not been understood understand all of the decision • the decision has been pronounced in a problem-oriented manner by looking at the relevant party and by maintaining eye contact

3) 3.a) • the judges do not treat the participants in the proceedings as imperson- TREATMENT OF The participants al objects of judicial measures, but rather as individuals with thoughts, THE PATIES in the proceed- emotions and demands – no matter what their role in the proceedings AND THE ings and the PUBLIC public have been treated with respect to their human dignity

3.b) • the parties are informed of the person in charge of the case and of case Appropriate reassignments advice is • the inquiries of the persons participating in the proceedings have been provided to the answered without delay participants in • information brochures and forms relating to the proceedings are kept the proceed- available and actively offered to the participants in the proceedings ings, while still • if necessary, the parties have been exhorted to seek the assistance of maintaining the a public legal aid attorney or a private attorney impartiality and • attorney services or advice have not been offered, but assistance e.g. equitability of in the fi ling of a case has been given in accordance with the nature of the the court matter

66 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • expert group evaluation (for the composition of the expert group, see 2.c) Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • expert group evaluation (for the composition of the expert group, see 2.c) Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt • survey of Lay Judges Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 67 Aspect Quality Description Point scale Evaluation methods criterion

3) 3.c) • directions at the Courthouse are clearly signposted TREATMENT The advising and • there is an information desk at the Courthouse OF THE PARTIES other service of • the entire personnel of the Court is responsible for advising and other AND THE those coming services, in so far as possible without compromising impartiality PUBLIC (cont’d) to court begins as soon as they arrive at the venue (Court- house etc.)

3.d) • information on the stages of the proceedings and the scheduling The participants has been provided to the parties and to others participating in the in the proceed- proceedings ings have been • the composition of the court (at least the presiding judge and the court provided with all clerk) and the contact details of the court have been notifi ed to the parties necessary infor- and others summoned to court already in the documents sent to them mation about the • the docket list posted at the door of the Courtroom indicates the names proceedings of the Court members and that of the court clerk • if necessary, the members of the court have been introduced to the parties in the beginning of the hearing • it has been ensured that the participants in the trial are informed of the course of the proceedings; if necessary, the presiding judge has told them about the same and about their role in the hearing • brochures and billboards are in use • the website of the Court is up to date and contains information about court proceedings and links to such information

3.e) • The Court has an up-to-date communications plan and the communica- Communica- tions and PR effort of the Court proceeds in accordance with the plan tions and public relations are in order, where necessary

3.f) • the complainants in criminal cases, the witnesses, and if necessary also The lobby the defendants have been provided the opportunity to wait for the hearing arrangements at in their own lobby areas (for the witnesses and complainants, it is impor- the Court are in tant that they can wait without any danger of duress; the situation is the accordance with same also with “fearful defendants”) the particular • it has been ensured that no disturbance is caused by intoxicated needs of various persons or others customer groups

68 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • media survey None = 0 pts • statement by the court on the existence of the communications plan Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 69 Aspect Quality Description Point scale Evaluation methods criterion

4) 4.a) Optimum processing times (stages): PROMPTNESS The case has OF THE been dealt 1. Civil cases (excluding summary debt collection cases) and disputed PROCEEDINGS with within petitionary matters under chapter 8, section 4(1), of the Code of Judicial the optimum Procedure processing times • registration of the action (at once), fi rst perusal = 1 week established for • time limit for a response = 2 to 3 weeks, depending on the nature of the organisation the case of judicial work • time limit for an eventual rejoinder = 2 to 3 weeks • preliminary hearing within 2 months of the end of the written preparation • main hearing within 2 weeks of the preliminary hearing • judgment within 2 weeks of the main hearing

Thus, the optimum processing time for a civil case and a disputed petitionary case is 4 months.

2. Criminal cases

2.1 Simple criminal cases (DUI etc.) • confessed crimes, no civil claims or no need for main hearing (written procedure) • main hearing and judgment within 1 month

Thus, the optimum processing time for a simple criminal case is 1 month.

2.2 Complex criminal cases • inquiry about possible civil claims 2 to 3 weeks • main hearing within 2 months of the fi ling of the case

Thus, the optimum processing time for a complex criminal case is 2 months.

NB: The achievement of optimum processing times requires that, in each case, there are no periods where nothing happens to the case

70 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

• self-evaluation by the judges about mean processing times (at fi rst) • statistics on processing times Civil cases (excluding sum- mary debt collection cases) and disputed petitionary mat- ters under chapter 8, section 4(1), of the Code of Judicial Procedure Under 4 mos = 5 pts 4 to 6 mos = 4 pts 6 to 8 mos = 3 pts 8 to 10 mos = 2 pts 10 to 12 mos = 1 pt Over 12 mos = 0 pts

Simple criminal cases Under 1 mo = 5 pts 1 to 2 mos = 3 pts 2 to 3 mos = 1 pt Over 3 mos = 0 pts

Complex criminal cases Under 2 mos = 5 pts 2 to 3 mos = 4 pts 3 to 4 mos = 3 pts 4 to 5 mos = 2 pts 5 to 6 mos = 1 pt Over 6 mos = 0 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 71 Aspect Quality Description Point scale Evaluation methods criterion

4) 4.b) • even though the cases are normally dealt with fi rst-in-fi rst-out, the PROMPTNESS The importance scheduling of certain types of case takes account of the especially great OF THE of the case to importance of the case to the parties, e.g. “mould houses”, child custody PROCEEDINGS the parties and cases, employment cases, debt adjustment (cont’d) the duration of • the express provisions on the promptness of proceedings are observed the proceedings • the justifi ed requests of the parties for fast-track hearing are taken into at earlier stages account have been taken • if the process has been prolonged at some stage (e.g. pre-trial investi- into account gation or a lower court), the promptness of the proceedings before the when setting the court is taken into specifi c attention case schedule

4.c) • even if the proceedings have been prompt from the viewpoint of the The parties feel court, it has been ensured that they have been prompt also from the that the proceed- viewpoint of the parties ings have been • the difference in the viewpoints of the court and the parties has been prompt adjusted e.g. by explaining the process and the reasons for time being consumed

4.d) • requests for extensions of time limits have been considered on their The time limits merits, so that an extension is not granted without due reason and also in that have been this event the extension is not longer than a few weeks set or agreed • no automatic extensions are granted for written responses have been • the statutory provisions on urgent hearings have been complied with adhered to

72 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • extensive survey, excluding the parties Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • extensive survey None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • extensive survey Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 73 Aspect Quality Description Point scale Evaluation methods criterion

5) 5.a) • judges follow new legislation and preparatory works and the latest case- COMPETENCE Judges take law, as well as keep up to date with the latest legal literature in their fi eld AND PROFES- care of the SIONAL SKILLS maintenance of OF THE JUDGE their skills and competence

5.b) • judges participate actively in the training sessions organised by the Judges attend individual courts or in the context of the Quality Project continued train- • judges participate actively in continued training sessions for members ing sessions of the judiciary, organised by the central administration of the courts or regularly some other body providing judicial training • each judge attends continued training sessions for 8 to 10 days every year (optimum training volume)

5.c) • the training needs and the participation in training have been listed in Judges’ partici- the court’s training plan for each judge separately pation in training is subject to agreement in the annual personal development talks

5.d) • judicial specialisation in criminal and civil cases is in use in the Court The Court has • also more refi ned specialisation is in use in the Court, if necessary in specialised view of the nature of the cases and if the size of the court allows for the judges same

5.e) • the judge is well informed of the factual basis of the case The parties and • the judge understands the point of the case the attorneys • the judge knows the provisions applicable in the case, the relevant case- have the law and legal literature; the judge is competent to discuss the case with impression that other professionals in the administration of justice the judge has • the case management of the judge is clear and determined prepared for the • the judge acts with confi dence in the proceedings; no timidity case with care • the judge is capable of interaction also with laypersons (description of and understands the case and discussion in “everyman’s terms”) it well • the judgment has been pronounced clearly and comprehensibly

74 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • court-level statistics Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • survey of the courts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • statement by the Court None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • extensive survey None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 75 Aspect Quality Description Point scale Evaluation methods criterion

5) 5.f) • judges’ meetings are held regularly at the Court (e.g. monthly) COMPETENCE Judges par- • in addition to administrative matters, the meetings deal also with adju- AND PROFES- ticipate regularly dicative matters, especially those proposed by the judges themselves SIONAL SKILLS and actively in • the matters to be discussed in judges’ meetings have been prepared as OF THE JUDGE judges’ meet- the nature of the matter warrants (cont’d) ings, in quality • minutes are kept of the judges’ meetings improvement • the judges take personal responsibility of the consideration of matters conferences in a judges’ meeting and also in other work of the Quality Working Groups

6) 6.a) • the court is managed with a view to its objectives ORGANISATION The organisation • operating principles have been adopted for the court AND of adjudication • the management of the court strikes a balance between the viewpoint of MANAGEMENT and the manage- the customers and the internal viewpoint of the court OF ADJUDICA- ment of the court • the management proceeds in interaction with the personnel TION proceed with • in the organisation of adjudication and the management of the court, it professionalism has been ensured that the necessary skills and competence are available and support the in the court discharge of the judicial duties of the court

6.b) • incoming cases are assigned to the judges by lot or by some other The assignment method ensuring the appropriateness of the distribution of new cases • the person doing the assignment has no infl uence on the outcome to the judges is • the assignment criteria have been pre-defi ned methodical and • the person doing the assignment has no personal stake in the outcome carried out in a • there are written instructions on the grounds on which the regular as- credible manner signment process can be sidestepped (e.g. exceptionally large cases)

6.c) • the specialised competence of judges is taken into account when they The specialised are assigned into specifi c duties and when the bases for the assignment competence of of cases are being defi ned the judges is utilised in the processing of cases

76 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • self-evaluation by the judges None = 0 pts • court-level statistics Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • expert group evaluation (expert group comprising a judge, an attorney and Partial = 1 pt a prosecutor) Satisfactory = 2 pts • declaration by the court Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • declaration by the court Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 77 Aspect Quality Description Point scale Evaluation methods criterion

6) 6.d) • it is possible to use reinforced compositions whenever the case is ORGANISATION Adjudication has extensive or complicated in terms of evidence, the law or otherwise AND been organised • adequate resources are available for the use of reinforced compositions MANAGEMENT so that the use OF ADJUDICA- of reinforced TION (cont’d) compositions is de facto possible

6.e) • the personal development talks are methodical and they have been Personal devel- planned in advance opment talks are • a form, containing the topics to be covered, is used in order to lend held with every structure to the talks and to make it easier to prepare for them judge every year • the agreements reached in the talks are put on record

6.f) • the progress of cases of long duration is monitored (e.g. cases older The court has than a year) a methodical • the judges discuss the court’s caseload and processing time statistics system for the for every quarter active monitoring • discussions are held at least once a year with every judge on his or her of case progress, personal caseload and processing time statistics making it • the court has prearranged mechanisms for intervening in possible possible to take undue delays with individual judges, arising e.g. from an excessive measures to workload speed up delayed cases

6.g) • the court has an up-to-date security plan, containing a risk assessment The security of and covering the security-enhancing measures in use (e.g. participation the participants in security training, inspections on arrival to the court, closed circuit TV, in the proceed- access control, bailiff on duty, attack alarms, emergency exits, availability ings and of the of a secure courtroom) court personnel • the participants in the proceedings feel that security has been is guaranteed guaranteed

6.h) • the superiors have seen to it that the members of the staff do not It is ensured by overwork, but maintain a sensible work/life balance. the management • every employee of the court has the chance self to see to his or her of the court that well-being at work the judges and • the time requirement of training has been taken into account in the other staff are assignment of cases to the judges not overloaded • if the court is objectively underresourced, the responsibility for with work the concomitant caseload congestion has been assumed by the chief of the court personally

78 EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes Aspect Quality Description Point scale Evaluation methods criterion

Achievement • statistics on reinforced compositions None = 0 pts Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • declaration by the court Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • statement by the court Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • statement by the court Partial = 1 pt • extensive survey Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

Achievement • self-evaluation by the judges None = 0 pts • statistics on absences due to health reasons Partial = 1 pt Satisfactory = 2 pts Good = 3 pts Laudable = 4 pts Exemplary = 5 pts

EVALUATION OF THE QUALITY OF ADJUDICATION IN COURTS OF LAW Annexes 79